#### Bryan *v.*Blythe and Another, Heirs, &c.

The heir is not hound, in any case, for the debts of his ancestor, beyond the amount of the assets descended.

A bill in chancery containing a claim against a defendant in his individual capacity, and another against him as an heir for the debt of his ancestor, may be objected to for multifariousness; but the objection must be made before the defendant has answered the bill.

If a Court, either of law or of chancery, have no jurisdiction of the *mbjeci-ma& ter*in controversy, it can render no valid judgment or decree upon the merits of the cause.

That the vendor of real estate has no title to the property, is a good defence to an action against the purchaser on a bond executed by him for the purchase-whether the suit be brought by the obligee or assignee of the bond.

*250*Monday, March*20, 1837.

THIS was a suit in chancery transferred from- the *Marion*Circuit Court, in consequence of the interest of the Circuit Judge, -

Blackford, J.

This is a suit in chancery brought by *John Bryan*against the heirs tif *Samuel Blythe,*deceased. The bill states that *Bryan,*in the years 1814 and 1815, in *Nicholas*county, *Kentucky,*recovered against *Samuel Blythe*four several judgments amounting in all to about 3,000 dollars; that executions were issued on the judgments^ but without effect; that *Samuel Blythe,*as a security for the payment of the judgments, assigned to the complainant a penal bond executed by *Benjamin I. Blythe,*one of the defendants, to the assignor, for the payment of 3,500 dollars, stating in the assignment that it was not to interfere with the collection of the judgments.- The bill further states, that *Samuel Blythe died*a *short time*before the filing of the bill, leaving the defendants his heirs at law.; that no letters of administration have been granted on the estate; that the judgments remain unsatisfied; that *Benjamin I. Blythe’s*residence was not, until recently, known to *the*complainant; and that the bond-remains unpaid. Prayer, that the defendants may be decreed *to pay*the judgments, and for general relief.

One of the defendants, *Benjamin I. Blythe,*answers-the bill, and admits the rendition of the judgments and his execution of the bond to his father, *Samuel Blythe,*deceased. He states, that the bond, with several others, was given in consideration of a tract of land in *Pennsylvania,*which the obligee conveyed to him by deed with general warranty; that this defendant took possession of the premises except a small part, by virtue of the deed, but was soon afterwards evicted by a claimant under a paramount title; that, therefore, the consideration of the bond had failed. The answer of *Samuel Blythe,*tire other defendant who is named in the bill, is similar to that of *Benjamin I. Blythe.*He says that his father died in the year 1830, leaving his brother *Benjamin*and .himself, with one sister, his heirs at law. These defendants both deny that any property descended to them from their father.

One object of this bill, judging from its face, was to obtain from the heirs of *Samuel Blythe,*deceased, the amount of the judgments Avhich had been obtained against him, in his lifetime, by the complainant. There is no averment in the bill, *251however, nor is there the slightest evidence, that any property descended to the defendants from their father; and the both deny the receipt of any assets whatever. This object of the bill, therefore, must fail. There is no rule of law more clear or more just, than that the heirs are not bound, in any case, for the debts of their ancestor, beyond the amount of the assets descended. 2 Saund. Rep. 7, note (4).

The other part of the bill is nothing more than a claim by the complainant, as an assignee of a bond, against the defendant, *Benjamin I. Blythe,*the obligor. .The demand here is against this defendant merely as an individual, for a debt of his own contracting, aDd ought not to have been united in the bill with the other demand against him as an heir, for the debt of his ancestor. The bill, in consequence of its containing both these demands, might have been objected to for multifariousness: but as the defendants have answered the bill, the objection to it merely for multifariousness cannot now be made. *Ward*v. *Cooke,*5 Madd. 122.

Another objection to this part of the bill is, that it shows plainly on its face, that the complainant’s remedy on the bond is exclusively at law. A Court of chancery has no jurisdiction in the case of a contract for the mere payment of money. *Brough*v. *Oddy,*1 Tamlyn, 215. The assignee- of a bond has the same right, by our law, to sue on it in a Court of law that the obligee has; and his remedy is confined to that Court. The complainant may suppose, that, as this objection was not made by demurrer, it is too late to make it now. We think, however, that if a Court, whether of law or of chancery, have no jurisdiction of the *subject-matter*in controversy, it can render no valid judgment or decree upon the merits of the cause. The following language on the subject is used in a modern-work on pleading: “ It is a fatal objection to the jurisdiction of any Court, that it has not cognisance of the *subject-matter*of the suit; that is, that the nature of the action is such as.the Court is, under no circumstances, competent to try: as if a real action were brought in the King’s Bench, or a cause, exclusively of *admiralty*jurisdiction, in any Court of common law. In any such case, neither a plea to the jurisdiction, nor any other *plea,*would be *necessary*to oust the jurisdiction of the Court. The cause might be dismissed on motion; and even without motion, it would be the duty of the Court to *252dismiss it *ex officio;*for the whole proceeding would be *coram. non judice*and utterly *void.”*Gould on Plead. 236. And, in a suit in chancery, Lord *Hardwicke*says—“that a Court of equity, which can exercise a more liberal- discretion than common law Courts, if a plain defect of jurisdiction appears at the hearing, will no' more make a decree than where a plain want of .equity appears.” *Penn*v. Lord *Baltimore,*1 Ves. Sen. 444 (1). From this view of that part of the cause which respects the claim on the bond, it is evident that, as a Court’of chancery, we could not render á decree for the complainant, though the defence relied on were not proved.

*C. Fletcher*and *O. Butler,*for the complainant.

*J. Morrison,*for the defendants.

But if this objection- as to the jurisdiction of the Court did hot exist, we could not sustain the complainant’s demand-on the bond., The defence, founded on a failure of consideration; is clearly made out by the evidence on the record. *Samuel Blythe,*the obligee,, had no title to the land in part consideration of which the bond was given: that point was settled, after the execution of the- bond, by the Supreme Court of *Pennsylvania*where the premises are situated. Such a defence by the purchaser, in an action against him on a bond given for the purchase-money, is decided to be valid in the case of *Leonard*v. *Bates, May*term, 1822. And the statute gives the obligor the same defence, existing before notice of the assignment, in. an action against him by the assignee, that he would have had if the suit were by the obligee. Rev. Code, 1831, p. 94 (2).

*Per*Curiam.

The bill is dismissed, but without costs. •

(1)

 Accord. *Cummins v.*White, in this Court, *November*term, 1837. *Contra, Underhill*v. *Van Cortlandt,*2 Johns. Ch. R. 339, and *Livingston*v. Livingston, 4 id. 287. The Circuit Court of the U. States, third circuit, disapproves of these *New-York*cases, and says that an objection to the jurisdiction of a Court of chancery, *or to*the want of equity in the bill, cannot be overruled for the want of a demurrer or plea, but must be sustained whenever the defect appears by the bill, the answer, or the proofs in the cause. *Baker v. Biddle,*1 Baldw. 394.

(2)

 Accord. Rev. Stat. 1838, p. 119.