Incandescent Light & Stove Co. v. Stevenson

Leaking, V. C. I am convinced that the motion to dismiss the bill must be denied. Our statute creates a lien in behalf of a general creditor of a deceased person on the lands of the deceased for a period of one j’ear and thereafter until a bona fide sale of the land has [483] been made by the heir or devisee. Haston v. Castner, 31 N. J. Eq. 697; Westervelt v. Voorhis, 42 N. J. Eq. 179, 180; 3 Comp. Stat. p. 3838 § 81 and p. 3845 § 94- The bill seeks to preserve Oils lien by enjoining a sale by the heir until the orphans court shall have made an order of sale of the land for the payment of the debt due complainant. The expiration of the year in no way increases the estate or interest of the heir or devisee in the land; it merely protects the title of a bona fide purchaser. The lien of the creditor continues until the title of a bona fide purchaser intervenes to extinguish it. The delay in administration's not a source of substantial injury to the heir, for an heir or devisee of real estate becomes liable to creditors of his testator or intestate to the extent of assets by him received. 2 Comp. Stat. p. 2789; Jordan v. Logue, 76 N. J. Eq. 471, 472. The situation thus presented by the bill is that of a creditor with a lien who seeks a remedy attainable alone in this court to preserve the existence of the lien until the orphans court shall have had an opportunity to enforce it by a sale of lands for the payment of debts in the settlement of the estate of the deceased debtor; whereas the only objection to the relief so sought is the delay of the creditor in causing an administration of the estate, which delay cannot be properly regarded as of substantial injur3r to defendant. . I will advise an order denying the motion to dismiss the bill. But defendant is entitled to a prompt final hearing on the bill and the present motion should be equitably treated as a motion to speed the cause, and no costs should be taxed.