Chalabre v. Cortelyou — 2 Paige Ch. 605

Majority

p. 605

Chalabre vs. Cortelyou and others.

Headnote

Where a devisee of an insolvent had a mortgage which was a prior lien on the premises devised, and she entered upon the premises as devisee, and received the rents and profits thereof, held, that as between her and the' creditors of the testator, she was bound to account for the rents and profits, and to allow them in part payment of the mortgage.

September 7th. 1830

The bill in this case was filed by a bond creditor of Dan-lei Cortelyou, deceased, against his devisees, to obtain satisfaction of the debt due to the complainant. A house and ten acres of land were devised to the defendant, Martha Cortelyou, who previously held a mortgage upon the same premises, to secure a debt from the testator. Immediately after the death of the testator, she entered into the devised premises, and had received the rents and profits thereof for several years.- She now claimed the whole principal and interest due on her bond and mortgage, without any deduction. '

decided, that as between the devisee and the creditors of the testator, she was bound to account for the rents and profits of the devised premises, or to allow them as part payment in ascertaining the amount due on her bond an d mortgage. And it being admitted that those rents and

p. 606

profits were equal to the interest which had accrued on her' mortgage in the mean time, she was only permitted to retain the amount of the principal, out of the proceeds of a sale of the mortgaged premises.