
    Clark v. Coe.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Executors and Administrators—Chatted Mortgage.
    Where an executor makes a personal mortgage on the property of his testatrix, to secure his individual debt, the mortgagee acquires no title.
    S. Same—Bona Fide Purchaser.
    Where one conveys, as executor, the property of his testatrix in payment of his individual debt, a purchaser for value is not protected.
    Appeal from circuit court, Kings county.
    
      Andrew J. Clark, administrator of Susan J. Clark, deceased, sued Henry L. Coe, in replevin. Judgment was rendered for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      Blair & Rudd, for appellant. John II. Atkinson, for respondent.
   Barnard, P. J.

The goods in question belonged to Susan J. Clark at the time of her death. Charles Z. Pond was her executor. After her death Pond took possession of the property, which consisted of household furniture,, and it was in use by the executor in his private residence. The defendant, was the lessor of Pond, and the rent was in arrears. Pond, as an individual, executed a personal mortgage on the property to the defendant to secure the-payment of the executor’s own debt for rent. The question is whether the-landlord-could hold the title against the plaintiff, who has been appointed administrator under the will annexed, in the place of the executor, Pond, who was removed from his trust. The cases are uniform that a purchaser for value and in good faith from an executor will acquire a good title, even if the executor misapplies the proceeds. Leitch v. Wells, 48 N. Y. 585. So, also, one who loans money on the securities of the estate is protected. McNeil v. Bank, 46 N. Y. 825. This case does not fall within these eases. The executor only conveyed his own individual title. He had none. If the evidence-is to be judged as if he conveyed as executor, the conveyance was in payment, of his private debt, and is on this account an exception to the rule that purchasers for value are protected. In Field v. Schieffelin, 7 Johns. Ch. 150, the-chancellor states the rule in such cases as follows, in reference to purchasers-for an executor in payment of the present debt of the executor: “The better doctrine is that in such he does buy at his peril.” The very fact that a purchaser extinguished this debt of the executor to him with the goods of the-testator carries its own condemnation on the face of the transaction. The-judgment should be affirmed, with costs.  