a creditor of Joseph he had the right, by his judgment, to acquire a binding lien upon the estate which Joseph received from his ancestor, Mary A. Burroughs, namely, a fee-simple in the lands in question, charged with the lien of Rachel's judgment. A judgment creditor may take and apply that estate in his defendant debtor's property which his defendant debtor owns, subject to all liens and charges existent upon it, but he can take no greater or freer estate or interest in that property than his defendant debtor owns. That is the definition of the judgment creditor's right, given by our court of errors and appeals in the case of Herbert v. Mechanics' Building and Loan Association, 17 N. J. Eq. (2 C. E. Gr.) 500, when it declared that the creditor “can, under his judgment, levy on execution all that belonged to his debtor, but he can take nothing more. He simply represents the debtor, and he takes the property as the debtor held it."

There is therefore no conflict of lien between these two judgments. That of Rachel became, on March 24th, 1897, a lien upon the fee-simple estate which Mary Anna Burroughs then held in the undivided one-fifth part of the premises in question.

When Mary Anna died on December 15th, 1897, intestate, her estate, subject to Rachel's judgment, descended to her heir-atlaw, Joseph A. Burroughs. Mr. Summerill's judgment, entered March 1st, 1904, against Joseph, is a lien only upon what Joseph acquired by the descent, i. e., an estate in fee in the said undivided one-fifth part, subject to the lien of Rachel's judgment.

Counsel for Mr. Summerill insists that under the provisions of section 9 of the act concerning the sale of lands, &c., (3 Gen. Stat. p. 2981), and its construction in this court in the case of Clement v. Kaighn, 15 N. J. Eq. (2 McCart.) 47, by Chancellor Green, it must be held that the plaintiff in a junior judgment, by suing out and actually levying the first execution upon the land, acquires a priority of lien over that of the senior judgment under which no execution has been issued, or, if issued, which has not been executed by levying it on the land. This construction given in the case cited, though one of first instance in respect to the extent of its application in the case decided by Chan

cellor Green, has ever since been accepted as the established law of the state.

The essence of that decision is its interpretation of section 13 of Rev. L. p. 433, which is section 9 (Nir. Dig. p. 724), and now to be found in 3 Gen. Stat. p. 2981, under the title "Sales of Land." Chancellor Green there held that section to mean that where a judgment was entered against K., and no execution was issued and levied under it, and subsequently another judgment was entered against the same person, under which an execution was recorded and issued and levied on the lands of K., the purchaser buying under the junior judgment and levy acquired a title prior to the lien of the senior judgment, and that this priority operated to postpone the senior judgment to all liens intermediately imposed on the lands between the senior and junior judgments.

The chancellor placed his decision upon the recital in the preamble of section 9, to the effect that the design of the statute is to give the plaintiff in the junior judgment upon which execution is first issued out "the proper fruits and effects thereof."

In that decision it will be noticed that all the judgments were entered against the same person. They bound the same estate in the lands, and the point to be determined was the effect of the statute upon their priority.

In the present case the judgments are entered against different persons and bind different estates. The judgment of Rachel Burroughs was against Mary A. Burroughs and bound the estate which Mary A. Burroughs had in the lands at the time it was entered in 1897. The judgment of Daniel V. Summerill, Jr., was against Joseph A. Burroughs and bound only the estate which Joseph had in the land in 1904. What he had was what descended to him from his mother, Mary A. Burroughs, subject to all liens and charges against her estate.

The "proper fruits and effects" to which Mr. Summerill became entitled by his judgment was to have the estate in the lands whereof his debtor, Joseph A. Burroughs, was seized applied to the payment of his judgment. When this is done Mr. Summerill will have had the full "fruits and effects" to which his judgment and levy against Joseph A. Burroughs entitle him.

That the estate in lands of a deceased debtor is charged with a lien to each of his creditors for the payment of his debts, without their having any judgments, was expressly held by the court of errors and appeals, in Haston v. Castner, 31 N. J. Eq. (4 Stew.) 699, interpreting the effect of the statute (Rev. p. 766 § 70, now P. L. 1898 p. 743 § 81). The court declared that the debt of the ancestor continued to be a lien on his lands after descent and until a bona fide sale thereof had been made by the heir.

In view of this declaration of our highest court that the estate in lands of a deceased debtor is bound for his debts to his creditor without a judgment, it would be absurd indeed to hold that because the creditor of an ancestor had entered a judgment against him in his lifetime, but did not levy, the creditor should lose his lien for the benefit of the levying judgment creditors of the heir-at-law.

The trend of the whole policy of all statutory enactments on the subject is to compel the application of the property of decedents to the payment of their debts. The heir takes what is left after the debts of the ancestor have been paid out of his estate. As this is all the heir receives from the ancestor, it is all that the heir's creditors can seize.

The master erred in holding that the Summerill judgment execution and levy had priority over the Rachel Burroughs judgment, and the exception taken to his report should be sustained. A decree to that effect will be advised.

The complainant was, on July 11th, 1904, about eighty-two years of age, in feeble health, nearly blind, illiterate and unacquainted with the conduct of business or the meaning of the most ordinary legal instrument. He owned one-third of an oyster-shipping business and its equipment, in partnership with his two sons, Edmund and Howard, who held two-thirds of that business. His other son, Walden, the defendant in this cause, was not a partner, but was employed by the complainant individually to work at the business. On July 11th, 1904, the defendant procured a bill of sale, in writing, to be prepared, expressed to convey presently all of complainant's interest in the business to the defendant for the sum of one dollar, and leading the complainant to believe that the paper would not take effect until after, his death, induced him to execute it without any valuable consideration whatever. The defendant afterwards refused to surrender it.-Held, the bill of sale did not conform to the intention of the grantor, who executed it under a misapprehension of its effect, and should be declared void.

The bill of complaint in this case is filed by Captain Edmund Stites, of Cumberland county, New Jersey, against his son, Walden Stites, the defendant, and seeks to have a paper-writing dated July 11th, 1904, made by the complainant to the defendant, and purporting to convey the complainant's one-third interest in an oyster business at Bivalve, in Cumberland county, to the defendant declared to be null and void, delivered up to be canceled, and for a restraint enjoining the defendant from disposing of the bill of sale or of the property therein described and for further relief.

The complainant alleges that for many years he has been engaged in the oyster-shipping business at Bivalve in the name of Captain E. Stites, and that he has associated with him two of his sons, Edmund Stites, Jr., and Howard Stites; that the active management of the business is in the hands of Edmund

Stites, Jr., who keeps the books and accounts and acts as managing partner. Complainant further alleges that he is eightytwo years old, and by reason of his advanced age and bodily infirmities has not been able to give much attention to the details of the business, which is largely conducted by his son; that he has employed his other son, Walden, the defendant in this suit, to take his place as one of the partners, and has paid Walden for that service $400 per year, and that during the past year there have been differences between the two sons, Edmund and Howard, touching the conduct of the said business.

The bill of complaint further alleges that on July 11th, 1904, the defendant, Walden Stites, came to the complainant's home in Newport, and was there joined by his brothers Howard and Edmund; that Walden produced from his pocket a paper-writing, which he explained was a bill of sale from the complainant to him of all the complainant's one-third interest in the oystershipping business and the property belonging thereto, and the defendant, Walden Stites, importuned the complainant then and there to execute the bill of sale, stating that, if made, it would put an end to the differences between Edmund and Howard; that the complainant was unwilling to part with his property and deprive himself of the income upon which he is obliged to support himself and his aged wife, and declined to execute the paper; that said defendant and also Edmund Stites, Jr., thereupon assured the complainant that the paper would not take effect until after the death of the complainant. That the paper was read to the complainant by his son, Edmund Stites, but that he had no copy thereof, and cannot say what the exact language was, but he understood from what was read to him, as well as the assurances given to him by his son, that it was not to take effect during the complainant's lifetime, and that his signing thereof would not in any way interfere with or affect the complainant's entire and complete ownership and control of his one-third of the said oyster-shipping business during the term of his natural life; that thereupon the complainant signed the paper produced by the defendant which was then taken away by him.

The bill of complaint further alleges that no consideration