Clark v. Coe — 59 N.Y. Sup. Ct. 379

Majority

p. 379

ANDREW J. CLARK, Administrator, with the Will Annexed of SUSAN J. CLARK, Deceased, Respondent, v. HENRY L. COE, Appellant.

Headnote

Executor — securing payment of his individual debt by a mortgage upon chattels held by him as executoi'. .

In an action, brought by the administrator under the will of Susan J. Clark, to recover the possession of certain household furniture, it appeared that the articles in question belonged to Susan J. Clark at the .time of her death, and that her son, Charles Z. Pond, who was her executor, took possession of her household furniture and used it in his private residence, which he leased from the defendant Coe. The rent being in arrears, Pond, as an individual, executed a chattel mortgage on the furniture to the defendant Coe to secure the payment of such rent.

Held, that the landlord could not hold the furniture as against the plaintiff.

Leitch v. Wells (48' N. Y., 585); McNeil v. Tenth National Bernik (46 id., 325) distinguished.

That the very fact that the purchaser secured payment of the individual debt of the executor by a mortgage upon the goods of the lattei’s testator carried upon the face of the transaction its own condemnation.

Field v. Schieffelin (7 Johns. Cli., 150) followed.

Appeal from a judgment recovered upon a trial at tbe Kings County Special Term, which was entered in the office of the clerk of Kings county on the 24th of September, 1888.

Frank Rudd, for the appellant.

Joseph U. Atkinson, for the respondent.

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 prop erty to 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

p. 380

misapplies tbe proceeds. (Leitch v. Wells, 48 N. Y., 585 .) So, also, one wlio loans money on the securities of the estate is protected. (McNeil v. Tenth Nat. Bank, 46 N. Y., 325 .) This case does not fall within these cases. The executor only conveyed hisown individual title. lie 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 from an executor, in payment of the present debt of the executor, “ the better doctrine is that in such a case 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.

Pratt, J., concurred.

Judgment affirmed, with costs.