Doe ex dem Duval's heirs v. McLoskey

1 Ala. 708

• Court: Supreme Court of Alabama
• Decided: June 15, 1840
• Status: Published

Opinion

COLLIER, C. J.

— 1. It is a general rule, that all persons whose interests are to be affected or concluded by the decree, ought to be made parties to a bill for the foreclosure of a mortgage. If they are not made parlies, the decree of foreclosure and sale does not bind them. (Story’s Eq. Pl. 177 ) So if the mortgagor, who is the owner of the fee, should die, his heir is an indispensable party to a bill to foreclose; so much so, that the cause cannot be proceeded in, until the bill is revived against him. (King v. Tullock, 2 Sim. Rep. 469; Story’s Eq. Plead. 180; Polk v. Clinton, 12 Ves. Rep. 48, 58; Bradshaw v. Outram 13, Ves. Rep. 235.)

Whenever by any means, any interest of a party to the suit, in the matter in litigation, becomes vested in another, the proceedings are rendered defective, in proportion as that interest affects the suit; so that although the parties to the suit may remain as before, yet the end of the suit cannot be obtained. And if such a change of interest is occasioned by, or is the consequence of the death of a party whose interest is not determined by his death, or by the marriage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole. For as far as the interest of a party dying, extends, there is no longer any person before the court by whom, or against whom the suit may be prosecuted. (Mitford’s Eq. Pl. 56 ’7 and cases there cited.) The suit then, quoad a party dying, in law parlance, abates, that is, there is a suspension of all proceedings in the case for the want of proper parties capable of proceeding therein, or of being proceeded against. Figuratively speaking, the suit is in asíate of suspended animation, and may be revived. (Milford’s Eq. Pl. 58.; Nicoll v. Roosevelt, 3 Johns. Ch. Rep. 60.) Whenever there is an abatement, the remedy to be applied in order to impart vitality to the suit, is a bill of revivor. (Calvert on parties in Eq. 92 ’3 4’, 104 et post, and cases there cited; Story’s Equity Pleadings 289, and cases there cited.) The death of Duval pending the bill of Hunt for a foreclosure, operated an abatement of the suit; and his heirs became entitled to the equity of redemption, in the same manner that their ancestor was while living. In order to afford them an opportunity of protecting that interest, and to authorize the court to divest it in favor of the purchaser under the decree of foreclosure, the heirs were indispensable parties. (Story’s Eq. Pl. 177; Calvert on parties in Eq. 179; Wilkins & Hall v. Wilkins 4 Porter’s Rep. 245.)

There is not the slightest pretence, that the plaintiffs were made parties to the suit of Hunt. No bill of revivor, or other similar proceeding was ever resorted to for that purpose. True the death of Daniel Duval was suggested, and a guardian ad litem appointed for his heirs, and a scire facias directed to issue to him; but it does not appear from the record in that case, which the bill of exceptions professes to set outsbi extenso, that such process was ever isssued. The guardian never having ap. peared and answered, an entry was made as follows: “ This day came the complainant by his solicitor, and John F. Everett, who was appointed guardian ad litem to the infant heirs of the said Daniel Duval, having failed to answer. It is ordered that this case be referred to Thomas White, who is hereby appointed master in chancery, to ascertain the amount due from the defendants to complainants, and he is hereby directed to report immediately.” On the next day the master made his report, which was confirmed and the decree rendered for a foreclosure and sale under which the defendant purchased a part of the property in dispute.

The regular mode of reviving a suit against the heirs of a defendant dying during its pendency, we have already seen, is by bill of revivor; yet we will not say, that if the heirs are made parties by scire facias, the decree when drawn collaterally in question, would be held void for the irregularity. It is unnecessary to consider that question, since the heirs of Duval were not made parties in any manner.

It was argued for the defendant, that even conceding the decree of foreclosure and sale does not divest the plaintiffs of their equity of redemption, yet they will operate as an assignment of Hunt’s mortgage; that Hunt having resorted to the court, in order to collect his debt, by a sale of the mortgaged premises, and having acquiesced in the decree and the consequent proceedings, this allowed the defendant to be substituted to all his rights, both in the debt and the mortgage; and it is not now permissible for the plaintiffs to urge the invalidity of the assignment. This argument is confessedly ingenious; yet we think it cannot be sustained. Hunt did not ask the interference of equity, merely to enable him to make an assignment of his mortgage. His power to perform that act without judicial sanction was entirely competent. A transfer of the debt intended to be secured, whether by indorsement or a mere delivery, would in equity, pass the security, and a written transfer of the debt and mortgage would vest the assignee with the legal interest in both. Such being the rights of the mortgagee, equity would not entertain jurisdiction for a purpose so entirely profitless, as the mere approval of an act, which might have been done out of court, without the authority of a decree.

A decree of foreclosure and sale certainly does not operate merely as an assignment of the debt and mortgage to the purchaser. The creditor who takes a mortgage to secure a debt by bond or otherwise, has three remedies, either of which he is at liberty to pursue; and all of which it is said, he may pursue, until his debt is satisfied. He may bring an action at law on the bond, or he may put himself in possession of the rents and profits of the land mortgaged, by means of an ejectment, or Irespass to try (¡ties; or he may foreclose the equity of redemption, and sell the land to satisfy the debt. (Coote on Mortgages, 518: McCall v. Lenox, 9 Sergt. & Rawle’s Rep. 302: Jackson v. Hill, 10 Johns. Rep. 481.) The action on the bond or other evidence of indebtedness, is resorted to, for the recovery of the money intended to be secured. The action of ejectment, or trespass, is an auxiliary remedy; and the bill in chancery is of the same character. The ejectment or trespass, is used to get possession of the mortgaged property; the bill in chancery, to remove incumbrances from it. When a judgment at law is obtained for the monej’, the character of the indebtedness is changed, being merged in the judgment, which constitutes a debt of record. So, where there is a decree of foreclosure, the mortgage becomes merged in it, and ceases to exist as a legal security for the debt. (Reedy v. Burgert, 1 Ohio Rep. 71: Tice v. Annin, 2 Johns. Ch. Rep. 125: Dunkley v. Van Buren, 3 John. Ch. Rep. 330: Hughes v. Edwards et ux. 9 Wheat. Rep. 489.) Such being the case, a decree of foreclosure, if valid, is a complete extinction of the mortgage; and if invalid, must be so for all purposes, and cannot serve as an authority to assign the mortgage by means of a sale.

Again: It is held that a decree of foreclosure and a sale under it, operates as a payment, to the extent of the sum paid by the purchaser, deducting therefrom the costs and charges with which the fund is properly chargeable. (Newell et al. v. Wright, 3 Mass. Rep. 150: Amory v. Fairbanks et al., ibid. 562: Hedge v. Holmes; 10 Pick. Rep. 380.) The payment of the debt extinguishes it, so that there is no subsisting contract to assign; and the contract being at an end, the mortgage, which is but an incident, terminates with it.

Whether equity would afford relief to a purchaser under a void decree, by subrogating him to all the rights of the mortgagee, to the payment of whose demand the purchase money had been appropriated, and thus keep alive, as against the mortgagor and his heirs, the mortgage, as a security for his reimbursement, is a question which cannot arise in a controversy at law, and we therefore, decline its examination.

It has been considered, in the absence of all stipulation upon the point, that the mortgagee was not entitled to recover the mortgaged premises of the mortgagor, until the deed became absolute at law, by the non performance of the condition, (Lessee of Ely v. McGuire, 1 and 2 Ohio Rep. 372.) But however equitable such a rule might be, the general current of authority maintains the right of the mortgagee to enter at any time upon the land mortgaged, or bring an action for the recovery of the possession, unless it appears by express stipulation, or necessary implication, that the parties understood that the mortgagor should remain in the possession. (4 Kent’s Com. 148, 158: Coote on Mortg. 330, 351: Hartshorn v. Hubbard, 2 N. Hamp. Rep. 453: Newman v. Chapman, 2 Rand. Rep. 93: Blaney v. Bearce, 2 Greenl. Rep. 132: Flagg v. Flagg, 11 Pick. Rep. 475: Brown v. Cram, 1 N. Hamp. Rep. 169: Colman v. Packard, 16 Mass. Rep. 39: Southerin v. Mendrum, 5 N. Hamp. Rep. 420: Pettingell v. Evans, ibid. 54: Newhall et al. v. Wright, 3 Mass. Rep. 138: Dexter v. Harris, 2 Mason’s Rep. 531: Eastbrook v. Moulton, 9 Mass. Rep. 258; Simpson’s lessee v. Ammon, 1 Binney’s Rep. 175: Evans and Iglehart v. Meniken, 8 Gill and Johns. Rep. 39.) But the mortgagor is regarded as the proprietor of the mortgaged premises, and entitled to their possession, as against all persons but the mortgagee or his assignees; and consequently, if wrongfully dispossessed, he may maintain an ejectment to be let into the possession. (Blaney v. Bearce, 2 Greenl. Rep. 132: Huntington v. Smith, 4 Conn. Rep. 235: McCall v. Lenox, 9 Sergt. and Rawle’s Rep. 302: Stanard v. Eldridge, 16 Johns. Rep. 254: Ford v. Philpot, 5 Har. and Johns. Rep. 312: Hitchcock v. Harrington, 6 Johns. Rep. 295: Coles v. Coles, 15 Johns. Rep. 330: Dickerson v. Jackson, 6 Cowen’s Rep. 147: Astor v. Hoyt et al. 5 Wend. Rep. 603: 4 Kent’s Com. 148 to 158, apd cases there cited.)

Our conclusion then, upon this branch of the case is, that by the death of Duval, Hunt’s suit abated; that his heirs were indispensable parties, in order to foreclose their equity of redemption; that they were not made parlies by bill of revivor or oth. erwise; that the decree, as rendered, did not operate an assignment of Hunt’s mortgage to the defendant; and that, although the mortgagee is entitled to the actual possession of the mortgaged premises, if he desire it, yet the mortgagor is to bo regarded as the legal proprielor, as against all other persons, and consequently, is entitled, if dispossessed, to maintain ejectment, or other appropriate action.

II. It is argued for the plaintiffs, that the proceedings in the county court, in regard to the real estate of Daniel Duval, are void, and will not aid the title of the defendant, because — 1. The orders of the court directing a sale were not made in pursuance of petitions previously filed. 2. In one case, the heirs of Duval are not designated by name. 3. In both cases, the citation is directed to issue to the individual appointed a guardian ad lilem, by order of the court, instead of the heirs. 4. Henry v. Chamberlain and Curtis Lewis, the commissioners appointed to execute the decree of the 17th May, 1827, did not make their report within sixty days, as therein directed. 5. The proceedings, for the purpose of obtaining orders of sale, do not appear to have been regularly continued up to the time when the orders were made, nor does the record show, .that the orders were made on judicial days. G The order of the 10th July, 1S28, setting aside the sale of (he defendant, under the order or decree of the 7th May, 1827, was unauthorized, and the resale, of consequence, void: and 7. The order, directing a re-sale, was void, inasmuch as it required the commissioners to sell an equity o-f redemption.

It may be proper to premise that the proceedings in the county court, originated under an act of December 1822, authorizing an administrator or executor to “ file a petition in the county court of the county in which letters of administration, or letters testamentary, have been granted, .setting forth that the personal estate of his intestate or testator (as the case may be,) is not sufficient for the payment of the just debts of such intestate or testator, or, that the real estate of such testator or intestate, cannot be equally, fairly and beneficial^, divided among the heirs or devisees of such intestate or testator, without a sale of the real estate, setting out and particularly describing in such petition, the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator; and particularly stating which are of age, and which are infants or femes covert.’’'’ The act further directs, that upon filing the petition in open court, it shall be the duty of the court to order citations to all the heirs and devisees, who are of full age, and to the husband of such as are feme covert, requiring them to appear on a particular day mentioned therein, at a regular or adjourned term of said court, and answer the petition; and it is made the duty of the court, forthwith to appoint guardians to such of the heirs or devisees, as are infants, to answer and defend against the same. And where a sale of the estate shall be ordered or decreed by the court, commissioners shall be appointed in the order or decree, with directions to sell the estate, either for money or on credit, as may be most just and equitable; and to report to the court at the time limited in the order or decree. The act further provides, that upon the coming in •of the reports of the commissioners, the court shall render a final decree in the cause; and if the terms of the sale have -been c.om: plied with by the purchaser of the estate, the commissioners shall be directed by such final decree, to convey the estate sold to the purchaser. ' T.hese are the only parts of the act which relate to the questions raised.

I. In lespect to the first objection to the proceedings of the county court, it cannot avail the defendant. It is true, the statute requires that the executor or administrator, shall file a petition in open court, as the initiatory step towards obtaining an order or decree for the sale of the real estate of their testator o-r intestate; yet if the court goes on to render its decree, it cannot be intended, from the absence of such a paper merely, that it was never filed. The intendment most rational, would be, that it was lost after the rendition of the decree. (Wheeler v. Bullard, 6 Por. Rep. 360.)

But here, it cannot be necessary ,to intend any thing which the record does not fully establish. By that, we are informed that the administratrix filed her petition, in which the lands sought to be sold were particularly described.

2 ancl 3. If it were necessary to sustain the jurisdiction of the county court, we would perhaps intend that the names of the heirs, with the allegation of infancy, were set out in the petition as required by the statute. But as the jurisdiction of the court did not depend upon the regularity of its proceedings, the omission to designate the heirs by name, &c., and the direction of the citation to the guardian cannot prejudice the title of a purchaser under the decree for a sale. The jurisdiction of the court attached, as soon as it recognized the petition, by appointing a guardian and ordering the issuance of a citation. The proceeding “ is in rem, against the estate of the intestate, and not in personamand cannot be made void by the misdirection of the citation. The cases of Wyman et al. v. Campbell et al. 6 Porter’s Rep. 219, and Couch & Robinson v. Campbell et al. Ibid 262, fully establish this conclusion. In these cases, this court decide, that where the jurisdiction of a case has once attached and the court proceeeds to render its final judgment, order or decree, the proceeding cannot be collaterally impeached, though the record may abound with irregularities, which would authorize its reversal upon a direct'appeal.

But it is argued for plaintiffs, that the proceedings of the county court, commenced in April, 1827, are void as against them, because not being made parlies eo nomine, they cannot prosecute a writ of error in order to their revision. Perhaps the statute, which provides for the issuance of writs of error by inferior courts, would not embrace the case of the plaintiffs; yet we apprehend that the powers oí this court, in virtue of its general superintendency of “ inferior jurisdictions,” would be adequate to the emergency. (Bett’s administrator v. Taylor, 6 Porter’s Rep. 333; Seawell v. Bate’s aministrafor, 2 Stew’t. Rep. 462; 3 ibid. 199.)

4. The act of 1822, requires the commissioners appointed to sell, to report to the court at the time limited in the order or decree; and the courtis required, upon the coming in of the report of the commissioners, to render a final decree in the cause. This requisition, as to the duty of the commissioners, must be regarded as directory; though they omit to comply with the directions of the decree, it is competent for the court to receive and confirm their report at a subsequent day. If the law were otherwise, it would be within the power of the commissioners, to defeat the title of a purchaser, at pleasure, by a neglect or refusal to perform their duty. If the commissioners fail to make their report at the appointed time, it is competent for the coui t to take measures to compel them to make it, and upon its being made, to confirm it, by a final decree. Such a power is indispensable to the attainment of justice.

5. Even if the omission of the record, to show that the proceedings of the county court had been regularly continued up to the rendition of the decree, was available on error, it cannot render the decree void and thus prevent the title from vesting in the purchaser. But we think the defect in the record of the county court, would not be fatal on error. In Green v. McGehee, 3 Porter’s Rep. 398, it was held that, as by law, all causes not tried or otherwise disposed of at each term, shall stand continued of course to the next term, it is not necessary that an order of continuance should be entered in each case — it is sufficient if it does not appear that the case was disposed of. The statute characterizes the proeceeding in the county court as a cause, and the regular day for the disposition of the business pertaining to the estates of deceased persons as a term-, so that the act on which the case cited rests, may be considered as strictly applicable.

In respect to the objection, that the orders or decrees for the sale of the real estate do not appear to have been made at a regular or adjourned term of the county court, it may be remarked that the reverse does not appear, and we must intend that they were made in conformity to the statute. Such an intendment would be indulged, even if a writ of error were prosecuted for the purpese of revising the orders or decrees.

6 and 7. The order by which the sale to the defendant under the decree of May, 1827, was set aside, was clearly unauthorized. That sale had been confirmed in December following, and the commissioners directed to make titile to the purchaser. The court might upon the report of the commissioners have refused to confirm their proceedings, and perhaps have declared the same to be null; but seven months after the sale had been confirmed, it was not competent to annul the final decree and order a re-sale. A court, from which an execution issues, may-set aside a sale made under if, (Mobile Cotton Press, &c. v. Moore & Magee, 9 Porter’s Rep. 679) on the ground, that courts of jurisdiction possess a controlling power over the acts of their officers and their process. But where a judgment or decree has been perfected and the term cf the court closed, it is not allowable to vacate it on motion. The order of sale and the final decree by the county court, may be assimilated to a decree directing a sale of mortgaged premises upon a foreclosure of a mortgage, which requires the master to make report of the sale. Suppose, upon the coming in of the report, the court should render a final decree confirming it and directing the purchaser to be furnished with the necessary evidence of title, would it be competent for the court of chancery to set aside its final decree at a subsequent term? Such a power would not be claimed for that court, and certainly, upon principle, the final decree of the county court should be held quite as sacred.

The order then, by which the sale to the defendant was set aside, being void, it will follow that the decree for a re-sale was unauthorized by law. That the county court cannot decree the sale of the real estate of a deceased person, on which mortgages exist, and provide for their payment from the proceeds, will not perhaps, be controverted. — Such a power, regularly pertains to a court of equity. But whether a sale of the mortgagor’s interest, under a decree of the county court (as seems to have been made,) will not confer upon the purchaser the right to redeem, is a different question, which the view already taken makes it unnecessary to decide.

III. We have already’ seen that an assignment of a debt, secured by a mortgage, will, at least in equity, transfer an interest in the mortgaged property, and that if the mortgage itself be also regularly assigned, the legal interest in both will vest in the assignee. [See Hatch v. White, 2 Gallis’ C. C. Rep. 152.] So, it has been held that the assignee "Gf a mortgagee in possesion, may protect his possession by showing an assignment. [Jackson ex dem. Minkle v. Minkle and another, 10 Johns. Rep. 480; Barker v. Parker et al., 4 Pick. Rep. 505; Jackson ex dem. &c. v. Babcock, 17 Johns. Rep. 112.] and the assignee, in virtue of the assignment, becomes invested with all the rights and remedies, to which the mortgagee, was entitled. [Jackson ex dem. &c. v. Bowen, 7 Cowen’s Rep. 1; Wilson v. Troup, 2 Cowen’s Rep. 195.] Without attempting to controvert the correctness of these principles, it has been argued for the plaintifl’s, that they cannot avail the defendant; because 1. The mortgage to the Caro’s was never assigned by the mortgagees, so as to pass to the defendant a right to the possession of the mortgaged property. 2. The mortgagees or their assignee, never having taken possession of the mortgaged property during the lifetime of the mortgagor, by his death, a descent was cast upon his heirs, which tolled the right of entry from all persons claiming under the mortgagees. 3. The debt intended to be secured, not having been presented to the personal representative of the mortgagor, within eighteen months after the grant of the letters of administration became extinct; and the mortgage, being a mere incident, cannot be enforced.

1. It is objected, that the deed by which the mortgage is assigned, is not executed by all the mortgagees. This objection, we think, is not well taken. Upon an inspection of the mortgage and assignment, it is clear!}7 inferable, that one or more of the female mortgagees had married between the periods when the two deeds were executed — and where this appears to have been the case, both husband and wife join in the assignment. True, the first names of several of the mortgagees are spelt differently in the mortga ge and assignment, yet it sufficiently appears from a comparison of the two deeds, that the names are the same — the names perhaps, being spelt in the one, according to their literal pronunciation, and in the other, with orthographical accuracy.

But is further objected, that a transfer of an interest in the mortgaged property, without an assignment of the debt intended to be secured, is a mere nullity — the former, being an incident to the latter, will adhere to it, and independently, of it, cannot be assigned; [Jackson ex dem. &c. v. Curtis, 19 Johns. Rep. 325— and 7 Cowen’s Rep. 231; Wilson v. Troup,] that there is no proof of the assignment of the debt to the defendant, and he cannot, consequently, claim as assignee of the mortgage.

The mortgage does not describe the " two certain bonds or obligations,” as being made payable to the mortgagees, but merely recites that, " Daniel Duval is justly indebted to the said parties of the second part, &c.” The mortgage then is not contradicted by the production of securities payable to " Maria Machado Caro” one of the mortgagees, but the reasonable intendment is, that although one of the parties is named in the notes, yet all, in whose favor the mortgage is made, are interested in the proceeds.

If the law be, as it has been determined in the cases cited from Johnson and Cowen’s Reports, then it is clear, that the securities intended to be embraced by the mortgage, should be described with reasonable certainty, in order that they may be identified by a comparison, or else they should be shown by extrinsic proof to be the evidence of the identical debt to which the mortgage refers. That parol proof of the identity of the debt is admissible, is sustained by the most respectable authority.

In Shiveras et al. v. Caig & Mitchell, 7 Cranch’s Reports 50, the mortgage purported to secure a debt of ¿230,000 sterling, due to all the mortgagees. But it was really intended to secure different sums due, at the time to particular mortgagees; advances afterwards to be made, and liabilities to be incurred to an uncertain amount. The mortgage was upheld, because it was executed in good faith. The court remarking, that the real transaction appearing to be fair, though somewhat variant from that which is described; it would, therefore, be unjust and unprecedented to deprive the person, claiming under the deed, of his real, equitable rights, unless it were in favor of a person who has been, in fact, injured and deceived by the misrepresentation. And in Jackson ex dem. &c. v. Bowen, 7 Cowen’s Reports 19, the mortgage referred to a bond bearing even date for seven hundred and fifty dollars, executed by the mortgagor to the mortgagees^ The bond intended to be secured was dated a few day’s prior to the mortgage, payable to the mortgagees and two others; and was a bond of indemnity, &c. against a promissory note for seven hundred and fifty dollars, executed by the mortgagees and the two others to the mortgagor or order, dated November 18th 1817; which the makers were obliged afterwards to pay. It was held that the variance was immaterial, and that the reference was sufficiently certain; or if not, that it might be made so by parol evidence, showing that the bond produced, was- the one intended. These citations may suffice to áhow, that a mis-* description of the debt intended to be secured, will not vitiate a mortgage; and that the variance may be explained by extrinsic proof.

In concluding that a mortgage cannot assign the right to the mortgaged property, without also assigning the debt to which it is an incident, we do not desire to' be understood as intimating, that it is incompetent for the mortgagee to relinquish, by contract, the possession to a third person, at any time, until the debt is paid. — But the defendant does not claim to occupy under such a contract — he insists upon the validity of the assignment to himself.

In the case before us, no evidence was offered to show that by M two certain bonds or obligations” as referred to in the mortgage, were intended the two promissory notes produced at the trial, but the reverse is rather inferable. The admission of the notes, without this additional proof according to the view we have taken, was erroneous.

2. The common law gave to the legal owner, an'extra judicial and summary remedy by entry, when another person, having no right, had previously taken possession of lands and tenements. In such case the party entitled, might make a formal but peace» able entry thereon, declaring that, thereby he took possession, and this notorious act of ownership, was considered equivalent to a feodal investiture by the lord. And this entry gave seizin, or put into immediate possession him that had a right of entry on the estate, and thereby made him complete owner and capable of conveying from himself by either descent or purchase.

This remedy, by entry, was allowed only in case of ouster by abatement, intrusion and disseizin; for the original entry of the wrongdoer being unlawful, a remedy was afforded by the mere entry of him who had right. And this right of entry was taken away by a descent cast.

The descents, which take away entries, are when any one, seized, by any means whatsoever, of the inheritance of a corporeal hereditament, dies, by reason whereof the same descends to his heir: in such case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken away; and he cannot recover possession against the heir, by this summary method, but is driven to his action to gain a legal seizin of the estate. And the reason why the right of entry is tolled, is, first, because the heir comes to the estate by act of law, and not his own act; the law, therefore, protects his title, and will not suffer his possession to be divested, till the claimant has proved a better right. Secondly, because the heir may not suddenly know the true state of his title, and therefore, the law, which is ever indulgent to heirs, takes away the entry of such claimant, as neglected to enter on the ancestor, who was well able to defend his title; and leaves the claimant only the remedy of an action against the heir. Thirdly, because the rule was adapted to the military spirit of the feodal system, and tended to make the feodatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands, whereof he died seized. And lastly, because it was agreeable to the dictates of reason, and the general principles of the common law. [3 Bla. Com. 174 to 179: 2 Bac. Ab. 304 to 312: 3 Reeve’s Eng. L. 16: 4 Ibid. 236: 2 Hilliard’s Ab. 177 and 190: Co. Lit. 266. a. 238. a. 240. b. 256. a. Adams on Ejectment 41 to 45: Taylor v. Horde, 1 Burr. Rep. 60: 12 East’s Rep. 41: Carter v. Tash, 1 Salk. Rep. 241: Doe ex dem. v. Staple, 2 T. Rep. 684.

Though the effect of a descent cast, upon the right of entry in the cases enumerated, is generally, nS we have stated it, yet there are exceptions to the rule. [See 2 Bac. Ab. 307 to 311, and the authorities above.] And it has been held, that ejectment lies after a descent cast, though there is no right of entry. [Mockbee v. Clagett, 2 Har. & McH. Rep. 1, and 3 Ohio Rep. 237.] So, also, where the entry of the party, or his ancestor, was originally lawful, and the continuance in possession only unlawful, the entry is not tolled. [Dowl & R. Rep. 41.] But it is needless to consider this doctrine further, since it is clear that even conceding the common law, in this particular, to be in full force here, it cannot be applied to the defendant as the assignee of the mortgage to the Caro’s.

Supposing the assignment to be valid, we have seen that the assignee was placed in the same situation which the mortgagee proviously occupied. Now the mortgagee had a continuing right of entry, which he might exercise at any time; or he might, at his election, permit the mortgagor to retain the possession. It is said the mortgagee is entitle to the possession, that he may prevent waste, and keep the property from being lessened in value in any way, and also to enable him to receive the rents and profits. (Soutberin et al. v. Mendrum, 5 N. Hamp. Rep. 420: Newhall v. Wright, 3 Mass. Rep. 138.) For so long as he permits the mortgagor to remain in possession, he has no right to the rents and profits. (Exparte Wilson, 2 Vesey and B. Rep. 253.) The right of entry then, in such a case, results from the contract of the parties: it is a continuing right, to be exercised or not, at the pleasure of the mortgagee; and depending upon contract, cannot be divested^by the death of the mortgagor, or other event, which does not annul the mortgage, or bar a reme'dy upon it. Other reasons might be stated, to show the inapplicability of the doctrine, in regard to a descent cost, to the case of the defendant; but those already noticed are deemect conclusive.

3. Since the argument at the bar, a gentleman interested as counsel in another case, in sustaining the views of the plaintiffs, upon the point we are now to examine, has submitted to us, some written suggestions, with a reference to authorities, in which he insists, that the limitation in regard to suits against executors and administrators, is materially different, in its operation and effect, from the general statute of limitations. That, although an administrator may not be bound to plead the general statute, yet he is bound to plead the statute which relates to him, in that character; and that the latter act not only bars the remedy, but extinguishes the debt. And further, so regardful is the law, of the interest of all parties, who are entitled to any part of the estate of deceased persons, that the plaintiff, in declaring, must show that his demand is not barred by a failure'to present it within the proper time. It is then concluded, that as the debt intended to be secured is the principal, and the mortgage the incident, the debt being extinguished by the statute prescribing the time, within which claims against the estate of a testator or intestate, must be presented to the personal representative, the mortgage of consequence ceases to retain a valid existence.

This argument is attempted to be sustained, by decisions of the supreme court of Massachusetts, founded on the legislation of that State, The first enactment declares, -that “ No executor or administrator, after having given notice of his appointment, as provided in the first section, shall be held to answer to the suit of a creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter excepted.” [t has been held, that this special limitation is not created for the personal convenience of the executor or administrator, but for the benefit of the persons interested in the estate he may represent ; and that although an administrator is not bound to plead the general statute, yet he is bound to plead this statute which relates directly to himself. And further, that although an acknowledgment by an executor or administrator, after the time limited by the general statute, may revive a debt against the tesiator or intestate, yet his acknowledgment will not have that effect, if the time prescribed by th,e special statute has elapsed. For, being bound to plead the latter, whenever it would bar the debt claimed, no promise or admission on his part, could operate to defeat the plea. And lastly, the special act not only suspends the remedy, but extinguishes the debt. (Brown et al. v. Anderson, Administrator, 13 Mass. Rep. 201: Scott v. Hancock et al. ibid. 162: Emerson v. Thompson et al. 16 Mass. Rep. 429: Thompson v. Brown et al. 16 Mass. Rep. 172: Dawes v. Shed et al. 15 Mass. Rep. 7: Hall v. Bumstead 20 Pick. Rep. 2: Angell on Lim. 283 to 290.

There is certainly nothing in the terms of the act cited, to show that the debt is extinguished. It merely declares, that the executor or administrator shall be held to answer to the suit of any creditor, &c., not that he shall not be bound to pay the debt. This language is not more stringent than that employed in the general statute of limitations of Massachusetts, which is as follows: “ The following actions shall be commenced whithin six years next after the cause of action shall accrue, and not after-wards,” &c. It is the acknowledged office of the courts of Massachusetts, to expound her own statutes; yet we cannot help thinking, that harmony, of decision would have been better preserved by determining that the special, like the general act, merely barred the remedy.

In some of the cases cited it is regarded as a clear principle that a promise by an executor or administrator, will remove the bar of the general, though not of the special statute. This distinction in our opinion, is not defensible. .In neither case will the promise revive the remedy. In Peck v. Botsford, 7 Down. Rep. 180, the supreme court of Connecticut in considering the effect of such a promise say, “ our laws regard an executor as an agent or trustee; without any beneficial interest given to him by the will. The personal property is indeed vested in him to pay the debts and legacies of the deceased. The residue goes to the heir or devisee. His duty is to settle the estate according to law; and not to subject it to debts by his admission.” The’ case of Thompson v. Peter, 12 Wheat. Rep. 563, is an authority quite as direct (o show (hat an executor or administrator cannot revive a debt against the estate he may represent by a promise to pay.

In Gookin v. Sanborn et al. 3 N. Hamp. Rep. 491, it was held that a claim against the estate of a deceased person is extinguished, if not exhibited to the executor or administrator within the time prescribed by law. But the terms of the statute of New Hampshire are so explicit that the court could have attained no other conclusion. So far a9 need be noticed, they are as follows: “ That in case any creditor shall neglect to exhibit his or her demand against said estate, to the executor or administrator within the term of two years next after proving the will, or taking administration &c., such demand shall be extinguished, and the creditor totally barred from recovering the same.”

The remaining provision of the Massachusetts statute, on which one of the authorities cited rests, is in these word: “ Afthe settlement of any estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him, by the creditors of the deceased, the heirs, next of kin, devisees and legatees of the deceased, shall be liable in the manner provided in the following sections, for all debts which could not have been sued for, against the executor or administrator, and for which provision shall not have been made, &c.” Again: “any such creditor whose right of action shall first accrue, after the expiration of the said time of limitation, and whose claim shall not have been presented to the judge of probate, or, if presented, shall not have been allowed, &c.? may recover the same against the heirs and next of kin, of the deceased, and the devisees and legatees under his will, each one of whom shall be liable to the creditor, to an amount not exceeding the value, whether of real or personal estate, that he shall have received from the deceased,” &c. ‘^And provided further, that no such suit shall be maintained, unless it be commenced within one year next after the time when the right of action shall -first accrue.” [Rev’d. Statute of Mass. ed. 1836, p. 448.) In Hall v. Bumpstead et al 20 Pick. Rep. 2, it was decided that in an action against an heir, the plaintiff must bring himself within this enactment, and the declaration must show, that administration had been taken out on the estate of the ancestor, that the demand was not due, aud payment of it could not have been claimed and enforced within four years after the grant ot administration, and that the action was brought within one year after payment of the demand could, by law, be enforced. It is argued, upon.the authority of this case, that it is incumbent upon a party, who sets up a claim against the estate of a deceased person, to show affirmatively in his pleading, that the claim was presented to the executor or administrator, within the proper time. We think the case cited, gives no countenance to the conclusion attempted to be deduced from it. An executor or administrator is liable to the payment of the debts of his testator or intestate to the extent of the assets, in virtue of the common law; ar.d all that is necessary in pleading, either at law or in equity, is to set forth, with legal precision, a demand, which the deceased is liable to pay. Matters of avoidance must come from the defendant. But the liability of the heirs is of an extraordinary character — created by and depending upon the statute; and according to all analogy, a party suing the heirs must bring himself within the provisions of the act by apt averments and proof. And in conformity to this view, is the principle of decision in the case cited. This disposes of the written suggestions submitted to us, so far as they are pertinent to the present inquiry; and our opinion is, that they do not establish the conclusion, that the bar of the debt intended to be secured, operates in bar of all proceedings on the mortgage.

But we have a statute of our own, in reference to which this point must be considered: it is in these words: “All claims against the estates of deceased persons, shall be presented to the executor or administrator, within eighteen months after letters testamentary, or letters of administration shall have been granted to said executor or administrator, and not after; and all claims not presented within the time aforesaid, shall be foreyer barred from a recovery: Provided, That the provisions of this section shall not extend to persons under age, feme covert, persons insane, or non compos mentis, to debts contracted out of this territory, nor to claims of heirs, or legatees, claiming as such.” This statute does not require the creditor to sue within any definite period, but merely directs that his claim shall he presented. The consequence of a failure to present it, is not an extinguishment of the demand, but merely a bar of its recovery. Here then, there is no ground for theargument, thatthedebt being extinguished, the mortgage which is mere incident, becomes also inoperative.

We have already seen that a mortgagee of land has three several remedies. 1. An action upon the bond or other evidence oí indebtedness, intended to be secured. 2. An action to recover the possession; and 3, A suit in equity, with the view to a foreclosure and sale. And he may prosecute all or either of these remedies at the same time, until he obtains satisfaction. Such being the law, we cannot conceive how the loss of one remedy should bar the others. (Lamb v, Clark, 5 Pick. Rep. 193: Miller et al. v. Miller, 7 Pick. Rep. 133: Ferriss v. Ferriss, 1 Root Rep. 465: Ashley v. Hill, 6 Conn. Rep. 246.) If the duty still remains, the plaintiff may adopt any appropriate, means for its enforcement.

A mortgage, as we have seen, passes to the mortgagee, as between himself and the mortgagor the estate in the land; and therefore gives something more than a mere security for a debt. It confers a specific lien upon property, of which the mortgagee, unless restrained by contract, may at any time take possession and retain it, until the debt is paid: and consequently the decisions, in regard to the effect of liens, after the statute has run against the debt, are strictly applicable. In Spears v. Hartley, 3 Esp. Rep. 81, Lord Eldon declared it as his opinion, that though the statute of limitations has run against a demand, if the creditor obtains the possession of goods, on which he has a lien for a general balance, he may hold for that demand, by virtue of the lien. And in Higgins v. Scott, 2 Barnw. & Adol. Rep. 431: Hyatt, an attorney, elaimed a lien upon a judgment, though his debt was barred by the statute of limitations; whereupon it was contended that the lien was gone. But the court held, that the statute barred the remedy but not the debt, and that the attorney who had taken no steps to recover his costs for six years, had still a right to be paid from the sale of the property under execution. True, these are cases of a lien on personal estate, but the principle which influenced their decision is strictly applicable to real estate; and the continuance of the lien, in respect to both descriptions of property, must depend upon the existence of the debt. ¶

The estate of the mortgagor, (in order to make the security available,) having vested in the mortgagee, so long as the debt continues, he should be permitted to reduce the mortgaged property into posession at any time, until the statute has run against an action of ejectment. Or he might waive that remedy and proceed in equity for a foreclosure and sale. This conclusion seems necessarily to follow from the consideration that, the statute operates to defeat the remedy, without discharging the duty.

It may seem, quite a refinement to speak of a right as existing, which can never be revived or enforced, yet a long continued course of decision, has so often recognized it, in the construction of the statute of limitations, that it may be considered a principle too firmly fixed to be changed, save only by legislation.

The mortgagee then, having a specific lien for the payment of his debt, there can be no reason why he should advise the administrator of his debt, in order to have the ben'efit of the lien. The grant of letters of administration does not confer upon the grantee the right to administer the realty. True, he may ask and upon proper proof obtain an order from the court appointing him, for the sale of the land of the deceased, for payment of debts, &c. but he cannot receive the proceeds until he executes an additional bond. This being the case, surely there is no necessity for presenting to the administrator the claim of the mortgagee; unless the security is deemed insufficient, and the estate of the deceased is looked to for the deficiency — in the latter case, the presentation of the claim, as required by our statute, is indispensable.

This view, is deemed sufficient, to show that the validity of the mortgage assigned by the Caro's to the defendant is not impaired by the failure to present the notes intended tó be secured to the administrator of Duval, within the time limited by statute. [See Belknap v. Gleason, 6 Conn. Rep. 2d series 160: Lingan v. Henderson, 1 Blands. Rep. 282: v. 2 Hals. Rep.: Hughes et al. v. Edwards and wife, 9 Wheaton's Rep. 489: Elmendorf v. Taylor, 10 Wheaton’s Rep. 152.

IV. In respect to the deed from Maria Machado Caro and Catharine Duval to the defendant, its inadmissibility was not shown to the circuit court, so as to have authorized its rejection. The plaintiffs objection to it, was founded upon the assertion, that the grantors had no tranferable right to the property embraced by their deed. No evidence was adduced to the court to sustain the objection, and the court could not regard it as well founded, merely upon the suggestion of counsel. The defendant might have given in evidence a conveyance from Mrs. Caro and Mrs. Duval, and then have shown by proof, that they had such a title as was the subject of sale. If this auxiliary proof was not offered, the plaintiffs might then have called upon the court to reject the deed, or instruct the jury as to its legal effect. But the bill of exceptions does not thus present to us the legal question.

V. The letters from the defendant to Mrs. Duval, during her residence in Cuba, do not tend directly to destroy the title which the defendant had sought to establish by his proof; nor do they directly aid the plaintiffs’ title. And if they were admissible for any purpose, it was as indirect evidence to impair the defendants title, by showing that so far as it was deduced from Mrs. D. it had its origin in fraud, and was of consequence, void. In thus limiting the only purpose for which these letters to be received by the jury, it will follow from what we have said, that the circuit court did not err.

VI. The depositions taken in the suit in chancery, were rightfully rejected. Under the circumstances in which they wéfe offered, they would have been inadmissible, (hough the parties had been the same at law as in equity. In Pleasants v. Clements, (2 Leigh’s. Rep. 474, 482,) it was determined that on the trial of an action at law, depositions taken in a suit in chancery, between the same parties, are not proper evidence, unless the witness be dead, or otherwise incapable of attending the trial. Our statutes in regard to depositions in suits at law, very clearly inhibit the admission of such proof.

VII. It is unnecessary to inquire whether the land in controversy, lying between Water street and the channel of the river, vested in Hunt and the Caro’s, under the mortgages from Duval, or whether the plaintiffs, as the heirs of the mortgagor, are not entitled, under the act of Congress of the 26th of May, 1824, “ Granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of the said city,” as the question will not probably arise on a subsequent trial. In the case of the Mayor and Aldermen of Mobile v. Eslava, (9 Port. Rep. 577) it was decided that the act referred to, did not interfere with the rights of riparian proprietors, and that Congress did not possess the constitutional right to grant the shore of the navigable ivaters within the States. If the part of the land sought to be recovered in virtue of the act of Congress, was, at the period stated in the act, embraced (as it is supposed) within the limits of the shore, then the case cited, is decisive of the point.

VIII. We think the court very properly refused to instruct the jury that the purchases made by the defendant, of the real estate of Daniel Duval, did not inure to the plaintiffs so as to authorize them to recover at law. The plaintiffs did not make the defendant their attorney, and as he did not act in that capacity, they could not object to his purchases merely because he was an agent. Mrs. Duval did not, nor could have invested the defendant with authority to purchase the property of her intestate’s estate, for the benefit of those interested therein — nor does it appear that she ever insisted upon the benefit of any purchase made by him.

It appropriately pertains to equity, to set aside a purchase by a trusteee or agent, made at a sale on account of his cestui que trust. That tribunal alone can do justice between the parties, by placing them in statu quo. And in that tribunal too, the plaintiffs if they have been injured, and will make out a proper case, can obtain redress. It might be competent for them to show that the defendant availed himself of his agency to their prejudice, and became the purchaser of the land of their father’s estate, at a sum less than its value. (Saltmarsh v. Beene, 4 Porter’s Rep. 283, and cases there cited.)

IX. By the twenty-first rule for the government of the practice in chancery, (1 Stew’t. Rep. 618) it is provided that “where a suit at law and a bill in chancery, are instituted for the same claim or demand, the defendant on suggestion, supported by affidavit, may move the court to inspect the records, and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect, in which he will proceed, and that he dismiss the other.

This rule is imperative, and requires that the plaintiff shall dismiss either his suit in equity, or at law, where the causes for which they are brought are identical. If therefore the circuit court upon an inspection of the records, was satisfied as to their identity, the refusal to permit the name of the defendant to be stricken from the record at law, or a nolle prosequi to be entered as to him was clearly proper, — the rule leaving no discretion as to the course of procedure.

The other questions arising upon the second bill of exceptions, cannot now be considered — they regularly come up, on a revision of the case in chancery.

Other points than those examiped have been raised, but the view already taken, will most probably lead to a decision of the case on its merits, and we consequently deem it unnecessary to notice them more particularly. Without attempting to recapitulate the various questions adjudged, we will content ourselves with declaring that the judgment of the circuit court is reversed, and the case remanded,