Gere v. Clarke — 6 Hill & Den. 350

Majority

p. 350

Gere vs. Clarke and wife.

Headnote

In a suit brought against an heir for the debt of his ancestor, the declaration must allege the special facts on which the defendant’s liability depends; and this, whether the debt arose by specialty or simple contract.

The defendant cannot be charged in the same count both as heir and next of kin. Per Bronson, J.

If one of two joint covenantors die, the remedy at law on the covenant is by action against the survivor; the representatives of the deceased covenantor being chargeable only in equity.

After the death of both covenantors, the remedy at law is by action against the representatives of the one who survived.

Where the action was on a joint covenant of two deceased persons, and the declaration alleged that the defendant was the heir of both; held, that it was bad, inasmuch as the defendant could only be charged as the heir of the survivor.

Demurrer to declaration. The plaintiff complains of Peter Clarke and Maria H. Clarke his wife, the said Maria being the

p. 351

next of kin, child and heir of one Hannah Fisher, for that whereas on the 13th of August, 1814, at &c., by a certain indenture made between one John Fisher, now deceased, and Cornelia his wife, and the said Hannah Fisher, also now deceased, of the first part, and the plaintiff of the second part, sealed &c., the said parties of the first part granted and conveyed certain lands to the plaintiff, with covenants of seisin, right to convey, warranty, and for quiet enjoyment; and the plaintiff has since been evicted, to wit, on the 1st of October, 1841. Averment, that Hannah Fisher departed this life on the first of January, 1829, and left her surviving the said John Fisher, now also deceased; and further, that the said Maria is the next of kin and heir of the said John Fisher. Conclusion, that the said Peter Clarke and Maria Clarke, the said Maria being the next of kin and heir of the said John Fisher as aforesaid, have not kept the covenant so made by the said John Fisher and Cornelia his wife, and Hannah Fisher; but have broken the same &c. Demurrer and joinder.

N. Hill, Jun., for the defendants.

E. D. Smith, for the plaintiff.

The declaration commences by charging Mrs. Clarke as the heir of Hannah Fisher, and concludes by charging her as the heir of John Fisher. She may be the heir of both Hannah and John; but on the facts of this case she cannot be charged as the heir of both. Hannah and John were joint covenantors. When Hannah died, the remedy at law on the covenant was against the survivor, and him only. The representatives of the deceased covenantor could only he charged in equity. This we held when the case was before us on a former occasion. The declaration has been amended, without getting rid of the objection. Mrs. Clarke can only be charged at law, as heir of the surviving covenantor.

The plaintiff seeks to charge Mrs. Clarke both as heir, and as

p. 352

next of kin. That, I think, cannot be done in one count. The pleadings may he very different in the two cases.

At the common law, an action might be maintained against the heir when he was named in and bound by the obligation of the ancestor: and it was not necessary for the plaintiff to allege in the declaration that the heir had lands by descent. If he had not, it lay on him to plead riens per descent. But the remedy of the creditor has been extended to simple contract debts, and the whole matter is now regulated by statute. The' heirs are liable, to the extent of the real estate descended, for the debts of the ancestor “ arising by simple contract or by specialty.” (2 R. &(. 452, § 32.)^[1] “ But such heirs shall not be liable for any such debt”—which includes specialty as well as simple contract debts—“ unless it shall appear that the personal assets of the deceased were not sufficient to pay and discharge the same or that the creditor has exhausted his remedy against the personal representatives and next of kin of the deceased. (Id. § 33.) And then to malee the matter more plain comes the 36th section, providing that “ it shall be incumbent on the creditor seeking to charge any heirs, to show the facts and circumstances herein required to render them liable.” It cannot be doubted that this has changed the mode of pleading; and whether the plaintiff sues on a specialty or a simple contract, he must allege in the declaration the special facts on which his right to recover depends, That has not been done in this case.

Judgment for the defendants.

END OF JANÜART TERM;

(a) (a) See Sess. Laws of 1837, p. 537, § 73.