
    Flora L. Vose, Respondent, v. Joseph C. Conkling, Individually and as Administrator with the Will Annexed, etc., of Ann Maria Miller, Deceased, and Others, Appellants.
    First Department,
    November 8, 1912.
    Decedent’s estate—mortgage by administrator to secure loan made to extinguish prior mortgage given by testator — deficiency judgment against administrator —when real'estate of testator not liable.
    Where a representative who borrowed money with which to pay mortgages formerly executed by her testator upon leaseholds, secured the loan by another mortgage upon the leaseholds, a deficiency judgment against the representative recovered by the second mortgagee does not bind the -decedent’s real estate, although, it seems, it maybe enforced against the personal estate, if any there be.
    The mortgage given by the representative is not based upon the personal obligation of the testator, that having been paid and discharged, while the obligation of the representative secured by mortgage on personal property was taken in place thereof.
    The fact that, after a lapse of years, the security given by the representative turned out to be insufficient does not justify a resort to the original obligation, which the parties did not intend to keep alive It seems, that if the security given by the representative were invalid, a different question might arise.
    Appeal by the defendants, Joseph C. Conkling, individually and as administrator, etc., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 22d day of December, 1911, and entered in the office of the clerk of the county of New York upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the complaint.
    
      Edgar J. Nathan, for the appellants.
    
      Stuart G. Gibboney, for the respondent.
   Miller, J.:

Ann Maria Miller died on the 4th day of September, 1893, seized in fee of certain real estate which the plaintiff in this action seeks to have charged with the payment of two deficiency judgments against an administrator of the said decedent, basing her right to that relief upon the following facts: The said decedent owned two leaseholds upon one of which she had given a mortgage on the 5th of September, 1889, to secure the payment of her bond for "the sum of $2,500 to one Matilda Wall. By her will, after directing the payment of her debts and making certain small bequests, she gave her property to trustees to divide the income among her husband and two children, a son and a daughter until the death of her husband and son, and upon their death she gave the'remainder to her daughter absolutely. Her executor and trustee, the said husband, died on the 2d of April, 1895, without having settled the estate, and letters of administration with the will annexed were issued to the daughter. On the 23d of July, 1902, the representative of Matilda Wall, who had died, demanded payment of the said bond and mortgage, and the said administratrix applied to the plaintiff and her sister, as administrators of the estate of Myra A. Wheeler, for a loan of $3,000, with which to pay the said mortgage indebtedness and the taxes on said leaseholds, and as security for said loan, she, as administratrix, gave two bonds of $1,500 each, and a mortgage of $1,500 on each of said leaseholds. Said sum of $3,000 thus obtained was used to pay the bond and mortgage of $2,500 executed by said testator, taxes which had accumulated on said leaseholds, and a surplus of $40.28 remaining after said payments was retained as assets of the estate. Said loan of $3,000 was made by the plaintiff and her sister upon the advice of counsel that said leaseholds were good security, and that the said administratrix could lawfully execute mortgages thereon. Thereafter the plaintiff, as sole surviving administratrix of Myra Wheeler, assigned said bonds and mortgages of $1,500 each to herself individually, and on the 23d day of July, 1910, began two separate actions thereon, and recovered deficiency judgments for $1,510.95 and $1,482.50, respectively, against the defendant, Joseph 0. Conkling, as administrator with the will annexed of said Miller, the former administrator having meanwhile died without having settled the estate, and he having been appointed as such. The complaint alleges that said testatrix left no personal property “so far as this plaintiff has been able to discover, except the aforesaid leaseholds,” and we shall assume that that is a sufficient averment that the deficiency judgments cannot be satisfied out of the personal estate.

It is of course conceded that the judgments did not bind the decedent’s real estate. (See Code Civ. Proc. § 1823.) It may he assumed, however, that they might be enforced against the personal estate if there were any, and' indeed the Code inferentially so provides. (See Code Civ. Proc. § 1.814.) They did not purport to be and in fact were not based upon a personal obligation of the testator. That obligation was paid and discharged and in place of it the obligation of the administrator as such secured by mortgages on personal property, executed by the administrator, was accepted. The obligation is not even for the same amount as the original obligation, but is for a larger sum, part of 'which was used to pay taxes and the rest ' went into the hands of the administrators as part of the personal estate. The loan was not made on the faith of the original indebtedness but on security, which was thought to be ample. The purpose of the transaction was in part to pay the obligation of the testator, and by that payment that obligation was discharged and in its place a new obligation with different security was substituted. After the lapse of years that security turned out to be insufficient, but that does not justify a resort to the original obligation, which the parties did not intend to keep alive. The plaintiff had no interest whatever to protect •in advancing money to discharge the obligation of the said testator, and in doing so was a mere volunteer. (Koehler v. Hughes, 148 N. Y. 507.) She cannot, therefore, ask that an obligation he kept on foot, which she expected' to be extinguished. If it had turned out that for any reason the security accepted by her was invalid, a different question would arise. But she has had her security. She has been permitted to foreclose her mortgages and now has judgments against the admim istrator for the deficiency. That is all she contemplated getting when she made the loan. She has merely been disappointed in the amount which the leaseholds sold for at foreclosure sale. But that may have been due to changed conditions, and it may have been due to a mistake as to the value of the leaseholds when the loan was made. Whatever the cause, it does not justify a resort to an obligation which all the parties intended to have discharged.

The administrator could not have created a valid lien upon the real estate directly by mortgage, and that result cannot be accomplished indirectly in the method attempted by the plaintiff in this case. The plaintiff accepted an obligation enforcible against the personal estate secured by mortgages on a particular part of the personal estate, and she must look to the obligation and the security on the faith of which she advanced her money. This result is not inequitable. If the mortgage given to Matilda Wall had been foreclosed when payment was demanded in 1902, it is not at all unlikely that the one leasehold upon which it was alien would have sold for enough to-pay it. At any rate, the two leaseholds were then considered adequate security for a larger sum.

The interlocutory judgment is reversed, with costs, and the demurrer is sustained, with costs", with leave to the plaintiff to serve an amended complaint on payment of costs in this court and in the court below.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  