Fannie R. O'CONNER, Admx. of Thomas O'Conner, Deceased, Appt.,

v.

James O'CONNER et al.

(....Tenn.....)

1. A purchaser of land expressly assuming and agreeing to pay off certain purchase-money notes given by his vendor and secured by a vendor's lien, which agreement

is contained in his deed, which retains a lien for the payment of this sum as well as the balance of the purchase price to his vendor, becomes personally responsible to the creditor holding the original lien.

2. An incumbrance consisting of a vendor's lien which is expressly assumed by a subsequent purchaser as part of the purchase price, as well as the remainder of the purchase money, which is payable directly to his

immediate vendor, who in his deed retains a lien for both sums, is such purchaser's personal debt; and in case of his death both sums are a charge upon his personal estate, and not a burden on the land in the hands of the heirs.

(Turner, Sp. J., dissents.)

(October 19, 1889.)

APPEAL by complainant from a decree of the Chancery Court of Knox County in favor of defendants in an agreed case submitted to the court for the purpose of determining whether the personal representative or the heir was liable for unpaid purchase money due upon land purchased by decedent. Affirmed.

The facts are fully stated in the opinions. Messrs. Webb & McClung, for appellant: Where a man purchases land already incumbered with a purchase-money lien, and assumes to pay off the lien, but dies before it

what payable.

Purchase money due on a contract for the purchase of land by a decedent is payable out of the personal estate. Wright v. Holbrook, 32 N. Y. 587; Broome v. Monck, 10 Ves. Jr. 597; Livingston v. Newkirk, 3 Johns. Ch. 312; Cogswell v. Cogswell, 2 Edw. Ch. 231; Johnson v. Corbett, 11 Paige, 265; Lamport v. Beeman, 34 Barb. 239.

This rule is not affected by the New York Statute, which, changing the common law, has made mortgages a charge on the real estate of a decedent unless he has expressly provided otherwise. Wright v. Holbrook, 32 N. Y. 587.

A mortgage for a debt of the mortgagor's own contracting, although given for the purchase price of the land mortgaged, is chargeable on the per

sonalty. Sutherland v. Harrison, 86 Ill. 363; Cumberland v. Codrington, 3 Johns. Ch. 229; Ruston v. Ruston, 2 U. S. 2 Dall. 243 (1 L. ed. 365); Hewes v. Dehon, 3 Gray, 205; Plimpton v. Fuller, 11 Allen, 139; Cope v. Cope, 2 Salk. 449 and note; Howel v. Price, 1 P. Wms. 291, and note.

A different rule applies as to mortgages assumed by a purchaser. On the death of a purchaser who had assumed the payment of an outstanding mortgage, the land, and not the personal estate of the decedent, is primarily liable. Coudert v. Coudert, 4 Cent. Rep. 132, 43 N. J. Eq. 407; Cumberland v. Codrington, 3 Johns. Ch. 229; McLenahan v. McLenahan, 18 N. J. Eq. 101.

Where part of the realty is incumbered by a mortgage, the executors should pay the mortgage first out of the personalty as far as that will go. Wood v. Hammond, 16 R. I. 37, 193.

A mortgage given in discharge of a judgment for a debt created by a contract of the mortgagor's ancestor, and which constituted an equitable lien on

able on the personalty, but is to be paid out of both funds, where the mortgage covers both the real and personal property. McLearn v. Wallace, 35 U. S. 10 Pet. 625 (9 L. ed. 558).

Although mortgages are chargeable upon the realty incumbered under the Statutes of New York, an action against an administrator on his intestate's bond is not barred by the fact that it is secured by a mortgage on land. Thompson v. Sullivan, 60 How. Pr. 71.

Where real estate is expressly charged with debts, the proceeds of sales for that purpose cannot be applied to a mortgage upon lands not sold, to the prejudice of other creditors. Van Vechten v. Keator, 63 N. Y. 52.

Vendee assuming incumbrance personally liable for

the debt.

The grantee of premises subject to an incumbrance is not personally liable therefor, without words importing, with reasonable certainty, a personal assumption of the debt. Davis v. Hulett, 2 New Eng. Rep. 122, 58 Vt. 90.

Where a purchaser expressly and in terms agrees to pay off an incumbrance out of the purchase price, such agreement inures to the benefit of the creditor, and may be enforced in equity; but where there is no promise to pay, but simply an agreement that, if the vendor fails to release the incumbrance within a certain time, the purchaser shall have the privilege to discharge it, it is otherwise. Ayres v. Randall, 7 West. Rep. 64, 108 Ind. 595.

An agreement, consented to by a mortgagee, whereby the grantee of the mortgaged pre nises assumes payment of the mortgage note as part of the purchase money, constitutes a novation which discharges the original mortgagor, and renders the