was required to be one which purported to agree to pay, not only for the contracting party, but for his heirs.

Co. Litt. 209 ; Bac. Abr. Tit. Heir and Ancestor, F.; Co. Litt. 376 b; Buckley v. Nightengale, 1 Strange, 665; Williams on Real Prop. 63; 2 Bl. Com. 244; Plow. 457; 4 Kent, 419, 420.

The notion that to bind the heir, the ancestor must contract that the heir should be bound, was not unnatural to the rude ideas of the feudal age. It was not necessary to the feudal contract to name the heir, only for the purpose of indicating the intention of the parties to extend the contract of lease to the heirs. The obligation to service and rents on the part of the heir, did not depend on any express contract that he should be liable. Originally, and in pure feuds, there was no express provision to perform services, or pay rents. The feudal law supplied that part of the contract by certain established rules. When it became the custom to specify the services and rents in the contract of lease, it was so far a departure from the feudal customs as to be placed under the denomination of an impure or improper feud. The obligations upon the heir never gained force from any expressed intention of the ancestor to bind him. The intention of the party making a contract, it is true, is the controlling principle, when confined to such limits as he has a right to contract for. But the expressed intention of one person to obligate another, is of no moment to fix the obligation upon that other. The heir could not be bound to pay the debts of the ancestor merely because the ancestor might have covenanted that he should pay them. Such a rule would enable every generation to borrow from posterity to an unlimited.

extent, and would lead to endless absurdities.

The idea, therefore, that the heir should be bound to pay only such specialty debts of the ancestor, as provided in express terms that the heir should pay, was soon abandoned. Nor was there any sound reason why specialty debts should be preferred to simple contract debts in that respect. The one was no more a lien upon the land, while the debtor

lived, than the other. And, as the rule was first established, even the specialty creditor lost all chance to resort to the land, by an alienation of the land by the debtor during life, or by a testamentary alienation.

Plunket Pension, 2 Atk. 204; Davy v. Pepys, Plowden, 439.

The distinction was not long continued. Simple contract debts were soon placed on the same footing with specialty debts, in respect to the heirs. The manner in which the change was brought about seems to be this: It occasionally happened that debtors, through their own appreciation of justice, devised or conveyed by deed their lands to trustees to sell, and from the proceeds, to pay their debts; or, by their wills, they charged their lands with the payment of their debts generally, making no distinction in favor of specialties.

The distribution of the proceeds of estates so disposed of, devolved on the court of chancery; and that court adopted the rule of allowing creditors by simple contracts, to share equally with the creditors by specialties. This practice was extended and made to embrace the liabilities of heirs.

Parker v. Dee, 2 Chan. Cases, 201; Bailey v. Ekins, 7 Ves.

319; 2 Jarm. on Wills, 544; Williams on Contracts, 64; Silk v. Prine, 2 Leading Cases in Eq. 252.

This change in favor of simple contracts was not made immediately, however, after the practice here referred to in the court of chancery; and, when first introduced, was limited in its extent. By the statute, 47 Geo. III, ch. 74, the fee simple estates of deceased traders were made liable to their simple contract debts, equally with their specialties. That was in 1807; but it was not until 1833 that the provisions of that statute were made applicable to all debtors alike, and then only in a qualified manner. See 3 and 4 William IV, ch. 104.

See also Richardson v. Horton, 7 Beavan, 112; 2 Sug. on Ven dors, 298; Spackman v. Trimbell, 8 Simons, 259.

A distinction was made in England in regard to judgment creditors. This distinction was confined to such judgments

as had been obtained against the debtor in his life-time. By the statute, Edw. I, ch. 18, the judgment creditor was allowed to take and hold the one-half of the debtor's land along with his chattels, until the debt was made. Beasts of the plough were excepted from the operation of the

statute.

The creditor had that right to the land, even after it had passed to a purchaser, and after the decease of the judgment debtor.

See Stileman v. Ashdown, 2 Atk. 608.

But such judgment creditors were not entitled to a personal action against the heir, except by scire facias to have

execution of the lands.

Sir Wm. Herbert's case, 3 Coke R. 12a; Davy v. Pepys, Plow. 441; Williams on Real Prop. 67, note 1.

The judgment creditors, therefore, were not so highly privileged, in that respect, as against the heir, as the mere contract creditors. The latter could recover by action against the heir the full amount of all the lands descended, while the former could reach only such lands as were embraced by the lien of their judgments; and of them, could appropriate only one-half to their debts.

The legislation of this country is more favorable to creditors than the legislation of England, in subjecting the lands of the decedent to the payment of his debts. The general rule seems to have been adopted here, that the lands of which the debtor shall have died seised of an estate of inheritance, shall be liable to the payment of his debts, whether such debts are specialties or simple contract debts; and, for that purpose, that they shall be regarded as assets in the hands of the heir, which may be so appropriated and applied, either by the sale of the premises on the application of the administrator, or executor, or by an action against the heir in the manner provided by statute.

4 Kent Com. 420; Watkins v. Holman, 16 Peters, 25; Bellas v. McCarty, 10 Watts, 31; Morris' Lessee v. Smith, 1 Yates,

So.

Yet, as before shown, the debts of the ancestor, whether due by special or simple contract, are not a lien on the debtor's land during his life, unless they have been made matter of judgment record, or secured by mortgage on the premises. They can be made a lien upon the land during his life only by a judgment, unless he chooses to make them While he lives, his lands can be reached and appropriated to the payment of his debts by the prosecution to judgment of an action against him. After his decease, they can be reached only by sale upon application of the executor or administrator, and the order or decree of the tribunal to which jurisdiction, for that purpose, has been committed; or, by an action against the heir or devisee, to recover upon the debts the value of the lands which the parties sued may have received, except, of course, judgment debts, where judgments have been rendered in an action commenced before the death of the debtor, when the lands upon which the judgment is a lien may be sold under execution issued

thereon.

The fact that the debt may have been secured by a mortgage upon certain lands made by the ancestor, has been held in New York, to have no effect upon the rights of the mortgage creditor in an action against the heirs upon the bond, without first foreclosing the mortgage.

Roosevelt v. Carpenter, 28 Barb. 426.

This was put entirely upon the ground, that the provisions of the statute which gave the creditor his action against the heir, authorized no distinction in that respect, between debts secured by mortgage and those which were not. It is said by Sutherland, J.: "I find neither reason nor authority for holding that the mortgage creditor is confined, in the first instance, to his remedy given by the mortgage against the mortgaged premises; and that he cannot pursue the remedy which the statute gives him against the heirs and all the real estate which they take by descent, on the bond, until he has first exhausted his remedy upon the mortgage.'

The statute which gives the creditor an action against the heir, declares that the heirs shall be liable for the debts of the ancestor, arising by simple contract or by specialty, to the extent of the estate descended to them.

2 R. S. 452, § 32.

But the debts of the ancestor are not all in the same order, in regard to the liability of the heir to pay. Some are preferred to others. In New York, debts are divided into three classes in that respect: 1. Debts entitled to a preference under the laws of the United States. 2. Judgments docketed and decrees enrolled against the ancestor, according to the priority thereof. 3. Recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts.

2 R. S. 453, § 37.

The heirs are not allowed to make preferences among debts of the same class. Id. § 38.

Similar provisions seem to exist in the statutes and practice of the other States.

The demands which may be enforced against the heir, to the extent of the property descended to him, are limited to those which arise out of contracts; but it is not important whether the contracts are under seal, or in what manner they are witnessed, except so far as it may relate to precedence of one class of demands over another. It is enough to make the heir liable to action, that a debt founded upon contract existed against the ancestor, and that he has lands by descent from the ancestor, for which he has not fully accounted in the payment of other debts against the ancestor, of an equal, or of a superior class.

SECOND. THE PARTIES DEFENDANT AND THEIR RIGHTS OF DEFENSE.

It should not be forgotten, while considering this class of obligations, that the heir is not liable upon the same principle, or to the same extent, as he is liable upon his own contracts, or upon his own debts. Regarded in a mere personal view, independently of his succession to the estate of the