CH. 3, s. 1. PT. III. T. 1, ment of the just debts of such persons, as well debts due on simple contracts as on specialty; and the heir or heirs at law, customary heir or heirs, devisee or devisees of such debtor, shall be liable to all the same suits in Equity at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as the heir or heirs at law, devisee or devisees of any person or persons who died seised of freehold estates was or were before the passing of this Act liable to in respect of such freehold estates at the suit of creditors by specialty in which the heirs were bound: Provided always, that in the administrations of assets by Courts of Equity under and by virtue of this Act all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty in which the heirs are not bound shall be paid any part of their demands " (p). 1366. It was not the object, nor is it the operation, of this statute to make the simple contract debts of a deceased person a specific charge on his real estate. But it does make them a general charge thereon in Equity: so that the heir or devisee takes no beneficial interest therein, except subject to and after payment of those debts; and hence judgments entered up against the heir for his own debt, before any action or suit by the simple contract creditors of the ancestor, have no priority over those simple contract creditors, notwithstanding the stat. 1 & 2 Vict. c. 119, s. 13 (subject to the stat. 23 & 24 Vict. c. 38, s. 1, and 27 & 28 Vict. c. 112, s. 1), constitutes a judgment a charge on any lands which the judgment debtor is seised or over which he has any disposing power (q). 1367. By the stat. 32 & 33 Vict. c. 46, after reciting that "it is (p) See also 1 Will. 4, c. 47, s. 9, as to traders' assets. 1. (q) Kinderley v. Jervis, 22 Beav. CH. 3, s. 1. expedient to abolish the distinction as to priority of pay- PT. III. T. 1, ment between specialty and simple contract debts of deceased persons," it is enacted as follows: "In the administration of the estate of every person who shall die on or after the 1st day of January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed, or other instrument under seal, or is otherwise made or constituted a specialty debt; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable, any statute or other law to the contrary notwithstanding: Provided always, that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt." 1368. Notwithstanding this statute, a judgment by a simple contract creditor against an executor or administrator has priority in the administration of assets over other simple contract creditors (r). 1369. ances by By the stat 11 Geo. 4 & 1 Will. 4, c. 47, s. 11, it is Convey enacted, "that where any suit hath been or shall be infant heirs or devisees under decree any for sale for instituted in any Court of Equity, for the payment of debts of any person or persons deceased, to which their payment of heir or heirs, devisee or devisees, may be subject or liable, and such Court of Equity shall decree the estates liable to such debts, or any of them, to be sold for satisfaction of such debt or debts, and by reason of the infancy of any such heir or heirs, devisee or devisees, an immediate conveyance thereof cannot, as the law at present stands, be compelled, in every such case such Court shall direct, and if necessary, compel such infant or infants to convey such estates so to be sold (by all proper assurances in the law) (r) In re Williams' Estate, L. R. 15 Eq. 270. VOL. I. M M debts. CH. 3, 8, 1. Conveyances by persons having a limited interest by executory devisces, under a decree for sale for payment of debts. PT. III. T. 1, to the purchaser or purchasers thereof, and in such manner as the said Court shall think proper and direct; and every such infant shall make such conveyance accordingly; and every such conveyance shall be as valid and effectual to all intents and purposes as if such person or persons, being an infant or infants, was or were at the time of executing the same of the full age of twenty-one years." And by s. 12, "where any lands, tenements, or hereditaments have been or shall be devised in settlement by any person devise, or by or persons whose estate under this Act, or by law, or by his or their will or wills, shall be liable to the payment of any of his or their debts, and by such devise shall be vested in any person or persons for life or other limited interest, with any remainder, limitation, or gift over, which may not be vested, or may be vested in some person or persons, from whom a conveyance or other assurance of the same cannot be obtained, or by way of executory devise, and a decree shall be made for the sale thereof for the payment of such debts or any of them, it shall be lawful for the Court by whom such decree shall be made to direct any such tenant for life, or other person having a limited interest, or the first executory devisee thereof, to convey, release, assign, surrender, or otherwise assure the fee simple or other the whole interest or interests so to be sold, to the purchaser or purchasers, or in such manner as the said Court shall think proper; and every such conveyance, release, surrender, assignment, or other assurance shall be as effectual as if the person who shall make and execute the same were seised or possessed of the fee simple or other the whole estate so to be sold." 1370. Mortgages and sales by By the stat. 2 & 3 Vict. c. 60, after reciting ss. 11 and infant heirs 12 of the stat. 11 Geo. 4 & 1 Will. 4, c. 47, it is enacted, and de visces, and that the said herein before recited provisions of the said by persons having limited Act shall extend and the same are hereby extended to interests, or executory authorise Courts of Equity to direct mortgages as well as CH. 3, s. 1. devisees, decrees for debts, of age. sales to be made of the estates of such infant heirs or PT. III. T. 1, devisees, and also of lands, tenements, or hereditaments so devised in settlement as aforesaid, and to authorise such under sales and mortgages to be made in cases where such tenant payment of for life or other person having a limited interest, or such though not first executory devisee as aforesaid, is an infant." And by s. 2, "when any sale or mortgage shall be made in pursuance of the said recited Act or this Act, the surplus (if any) of the money raised by such sale or mortgage, which shall remain after answering the purposes for which the same shall have been raised, and defraying all reasonable costs and expenses, shall be considered in all respects of the same nature, and descend or devolve in the same manner, as the estate, or the lands, tenements, or hereditaments so sold or mortgaged, and shall belong to the same persons, be subject to the same limitations and provisions, and be applicable to the same purposes, as such estate or such lands, tenements, or hereditaments would have belonged and been subject and applicable to in case no such sale or mortgage had been made." 1371. ances under such heirs, under age, otherwise devise, but an execu tory devise favour of a By the stat. 11 & 12 Vict. c. 87, after reciting s. 12 of Conveythe stat. 11 Geo. 4 & 1 Will. 4, c. 47, it is enacted, "in decrees, by cases in other respects falling within the said herein before though recited provisions of the said Act, that the said herein before taking recited provision of the said Act shall extend and is hereby than by extended to any case in which any lands, tenements, or subject to hereditaments of any deceased person shall by descent or over in otherwise than by devise be vested in the heir or co-heirs person not of such persons, subject to an executory devise over in not ascer favour of a person or persons not existing or not ascertained; and in any such case it shall be lawful for the Court mentioned in the said recited provision to direct such heir or co-heirs, notwithstanding such heir or such co-heirs, or any of them, may be an infant or infants, to convey, release, assign, surrender, or otherwise assure the in being, or tained. CB. 3, s. 1. PT. III. T. 1, fee simple or other the whole interest or interests so to be sold to the purchaser or purchasers, or in such manner as the said Court shall think proper; and every such conveyance, release, surrender, assignment, or other assurance shall be as effectual as if the heir or co-heirs who shall make and execute the same was or were seised or possessed of the fee simple or other whole estate so to be sold, and, if an infant or infants, was or were of full age." 1372. To what debts issue in tail are liable. Proportionate liability IV. Liability of Persons having particular Estates to discharge Debts or keep down the Interest thereof. By the common law, the issue in tail are not subject to any of the debts or incumbrances of their ancestor (s). But under the stat. 33 Hen. 8, c. 39, s. 75, the issue in tail are subject to debts originally due to the Crown, by judgment, recognisance, obligation, or other specialty, unless before any process or extent the issue in tail bonâ fide alien the land (t). And under the stat. 1 & 2 Vict. c. 110, s. 13, a judgment may operate as a charge on real estate so as to bind the issue (u). 1373. Where a jointress and the issue claim under the same of jointress settlement, they shall contribute proportionably in the discharge of any prior incumbrance on the estate (x). 1374. and issue. Voluntary discharge of an incumbrance by a tail, or by a tenant for life If a tenant in tail in possession pays off an incumbrance on the estate, it will ordinarily be treated as extinguished, tenant in and the remainderman cannot be called upon for a contribution, unless the tenant in tail has kept alive the incumbrance by some suitable assignment, or has otherwise manifested his intention to hold himself out as a creditor of the estate in lieu of the mortgagee; because a tenant in tail in possession can make himself absolute owner of (s) 1 Cruise T. 2, c. 2, § 27 (u) See supra, par. 1156. |