#### Stephen H. Olin, as Guardian, Etc., Plaintiff, *v.*Simon Arendt et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

Executors and administrators — Individual liability for a foreclosure deficiency on a mortgage against lands of their testator — Consideration.

A sealed agreement whereby, In consideration of an extension of time of the payment of a mortgage debt, executors of a testator (who was not himself personally liable for the debt but upon whose property the bond and mortgage is a lien) covenant with the mortgagee that they will pay the principal sum, remaining due, creates an Individual liability upon the part of the executors, as the agreement must be deemed .to be their personal, contract.

It has a sufficient consideration in the fact that it was under seal and that the time of payment was *extended.-1*

Action to foreclose a mortgage.

Louis James Phelps, for plaintiff.

Hansom *&*Hansom (Louis Y. Booraem, of counsel), for. defendants Arendt, Cohen & Casper. '

Herbert Parsons, for defendant Lipman, individually and as executrix. ,

. W. W. Hoppin, guardian ad litém, for defendant lima Lipman,

*271Beach, J.

The question presented for decision by the trial of this action, is whether or not the defendants, executors and executrix are individually liable for any deficiency which may result from the foreclosure sale, by virtue of the agreement dated July 28, 1896. This agreement was between plaintiff of the one part and Abraham Cohen, Caesar Casper, Simon Arendt and Frances K. Lipman, as executors and executrix under the last will and testament of Julius Lipman, deceased. - The ■ agreement secured an extension of time for payment of the mortgage debt and thereunder the parties defendants above named covenanted to pay the principal sum remaining due on the mortgage. It was under seal. The bond and mortgage were given by Arendt, and Julius Lipman subsequently took title to the premises without assuming payment of the mortgage. He afterwards died holding title, leaving a last will, wherein the above-named defendants were appointed executors and executrix. .

While the actual consideration may be open to inquiry, and the presumption of consideration arising from the seals may be rebutted, still the expression of a consideration is not subject to contradiction for the purpose or with the effect of invalidating the instrument. Fuller v. Artman, 69 Hun, 546, and cases there cited; Wells v. Wells, 8 App. Div. 422. The agreement is, therefore, not void from lack of consideration, and indeed there seems to be a sufficient consideration expressed and shown by its terms.

In considering the question of individual liability, it must be borne in mind that the testator Lipman was not liable on the bond, or for any deficiency which might arise from a sale in foreclosure. While an executor may not be liable personally on a contract made by him as such, relating exclusively to matters of the estate, and in which the executor has no personal, interest, still outside of such matters, when he contracts even as executor, an individual liability results. He cannot burden estate assets by such agreements, regardless of the question as to- reimbursement on an accounting. Pinney v. Administrators of Johnson, 8 Wend. 500; Chouteau v. Suydam, 21 N. Y. 179; Schmittler v. Simon, 101 id. 554; Glenn v. Burrows, 37 Hun, 602; Foland v. Dayton, 40 id. 563.

I am of opinion that the defendants executors and executrix are personally liable for any deficiency arising by virtue of the contract made by them.

Decree of foreclosure ordered, with a provision conforming with above.

Ordered accordingly;