
    Anna M. W. Heidgerd, Appellant, v. Karoline Reis and Others, Defendants. James A. Cunningham, Respondent.
    First Department,
    December 10, 1909.
    Mortgage — foreclosure — parties — administrator Of deceased mortgagor — creditors of deceased mortgagor — vendor and purchaser — marketability of title.
    On the death of a mortgagor intestate her heirs are necessary parties to a suit of foreclosure, but not her administrator. The administrator as such has no interest in the lands of his intestate, nor does he represent her general creditors in such sense as to make him a necessary party to foreclosure even if the personalty be insufficient to pay the debts. , ' • ■
    
      But such administrator is a proper, as distinguished from a necessary defendant on foreclosure, as the estate is liable for a deficiency.
    Although the estate of a deceased mortgagor be insufficient to pay his debts, general creditors have no such lien upon lands as to make them necessary parties to foreclosure.
    Hence, one who has bid in lands on foreclosure cannot refuse to take title upon the ground that the administrator was not made a party defendant even though the personalty be insufficient to pay debts.
    Nature of the statutory right of creditors to subject lands to the payment of debts where the personal estate is insufficient/stated per Houghton, J.
    Appeal by the plaintiff, Anna M. W. Heidgerd, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 21st day of October, 1909, denying the plaintiff’s motion to compel the purchaser of mortgaged premises to complete his purchase.
    
      Ferdinand W. Feller, for the appellant.
    
      Morris II. Hayman, for the respondent.
   Houghton, J.:

In August, 1907, one Augusta Reis' died intestate seized of certain real property upon which she had given a mortgage in her lifetime, and in the September following an administrator of her estate was duly appointed. Default having been made on the mortgage a foreclosure action was thereafter .begun and on June 30, 1909, the mortgaged premises were sold pursuant to the judgment of foreclosure and sale. The heirs at law of the mortgagor were made parties to the action of foreclosure, but the administrator of the deceased mortgagor was not, and the purchaser refused to complete his purchase on the ground that three years not having elapsed since the death of the owner of the equity the title was defective because such administrator was not made a party defendant so" as to cut off whatever interest lie'had in the property and the lien of the general creditors of the mortgagor of which there were several with deficiency of personal assets to satisfy them.

A motion was made to compel him to complete his purchase and the learned Special Term denied it, holding that his contention was correct. We think this was erroneous. When Augusta Reis died intestate the real property subject to the existing mortgage passed to her heirs and they thereafter held as owners. These heirs having been made parties to the foreclosure action their interest in the property was cut off and their interest was the only one necessary to make good title. An administrator as such has no interest in the land of his intestate, nor does he represent the general creditors of his intestate in any such sense as makes him a necessary party to a foreclosure action even where there is a deficiency of personalty to pay debts. An administrator is the person through whom any deficiency on the bond and mortgage debt may be collected and he may be made a party defendant and adjudged to pay through his administration of the estate any deficiency which may arise if the plaintiff sees fit to so demand. (Code Civ. Proc. § 1627; Glacius v. Fogel, 88 N. Y. 434.) But it is not incumbent upon the holder .of the mortgage to make this demand, for the only necessary parties defendant to a foreclosure action are . the persons having title to the premises covered by the mortgage and those who have acquired liens subsequent to the mortgage. (Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127.) Of course, if the mortgagor still retains title he is a necessary party, because he is the.owner of the land, but he is not a necessary party if he has parted with his title. (Van Nest v. Latson, 19 Barb. 604.)

Eor do the general creditors of a mortgagor who has died leaving insufficient personal assets to p.ay his debts have any such lien as makes them necessary parties to a foreclosure action. ' ,

It has long been the statutory law, now embodied in sections 2749 and 2750- of the Code of Civil Procedure, that at any time within three years after letters were first duly granted within the State,' any representative^ other than a temporary administrator, or general creditor of a deceased person upon showing insufficiency of personal assets might apply in the prescribed manner for the sale of 'the decedent’s real estate for the payment of his debts. The law giving this privilege does not state that the creditor has a lien on such real property, general or specific. On the death of the owner of real property title passes either to his devisees or to his heirs. They can convey it even within the three years, and a bona fide purchaser who has no notice of deficiency of personal assets to pay debts takes good title. (Code Civ. Proc. § 1853; Cunningham v. Parker, 146 N. Y. 29.)

Whatever confusion exists as to this right of a creditor to be paid through sale of a decedent’s real estate during the period of three years after letters are issued arises from calling it a lien. It is not a lien in the sense in which that term is ordinarily used.' It has been termed a kind of statutory lien ” (Platt v. Platt, 105 N. Y. 488, 497), but a better definition is that it is a “ statutory power ” which may be exercised against real property of a decedent on showing deficiency of personal assets'. (Matthews v. Matthews, 1 Edw. Ch. 565, 569.) This power must be exercised by the creditor or in his behalf by the personal representative of the decedent in the manner prescribed by law, and may only be exercised within the prescribed time after general letters testamentary or of administration have been duly issued; but the existence of this power'does not make the general creditors lienors.or render them or the representatives of the decedent necessary parties to the foreclosure of a mortgage existing at the time of the death of the owner of the land. {Gardner v. Lansing, 28 Hun, 413.) The sale of a decedent’s real estate for the purpose of paying his debts in Surrogate’s Court is regulated by title 5 of chapter 18 of the Code of Civil Procedure, and section 2798, which is embraced in that title, recognizes in effect that general creditors have no general lien on such real property, for it expressly provides that on foreclosure within the specified time of a mortgage thereon the surplus arising from the sale shall be paid into the Surrogate’s Court from which letters were issued, to be distributed among the creditors in the manner thereafter prescribed. If there were any general lien such distribution would' be made through the court in which the foreclosure action was brought.

In Moser v. Cochrane (107 N. Y. 35), upon which the respondent relies, the purchaser brought action to recover back her deposit made on a contract of purchase with the heir within three years of the death of his ancestor. The court held that even in such case the purchaser could not be relieved of her contract where it was shown there was no deficiency of personalty to pay debts. That case is not an authority for saying that the administrator or the general creditors are necessary parties to a foreclosure by action, of a mortgage existing at the death of the mortgagor, even where there is insufficient personalty to pay debts. ■

It was not necessary that the administrator of the deceased mortgagor or her general creditors should be made parties defendant to the plaintiff’s action of foreclosure, and the objection that they were not parties being the only one made by the purchaser against fulfilling his bid, it follows that the plaintiff’s motion should have been granted instead of being denied.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingbaham, McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  