Magrtider, J.,
delivered the opinion of this court.
What was decided by the court, on the former appeal between these parties, will appear by the decree then passed, and not by a reference to the points made and argued by either of the parties. This court determined, and could only determine, that so much of the order of the court below “as excluded the said William H. Marriott from being a co-defendant in the trial of said issues in said county court, be reversed, and simply directed the said orphans court to make the said William H. Marriott a party to the said issues, to be sent and tried in the said county court.”
Touching any other matters in controversy between these parties, the court intimated no opinion. It was simply a decision by this court, that in the trial of issues like these, it is usual and proper to make all the executors parties to defend, and in this case the usual practice should not be departed from. It did not, and could not provide for events not to be foreseen; such as the death of any of the persons, by the decree required to be made parties. ’
The death of Me Kim, the other executor, certainly puts it out of the power of the court below to name the original parties as the parties when the issues are to be tried, to make Marriott a co-defendant, as the individual whose co-defendant he was to be, can no longer be associated with him, and especially as this court was bound to know that Marriott was, in interest, a co-plaintiff.
It is insisted by the appellant, that although it might be proper, while the other executor was alive, to make the appellant a co-defendant, yet, in the trial of the matters now in controversy, (if a trial of them has not become unnecessary,) he cannot, with any propriety, be made sole defendant, if a defendant at all. Surely, in osder to decide this simple question, it is not necessary for us to examine all the matters in controversy, which have existed, or may arise between these parties. Is[38]*38sues are to be directed and tried, when the facts in issue must be ascertained before the court can pass any order properly required of it, and when the court is authorised to pass some order grounded in whole or in part upon the facts to be found and ascertained by the trial of the issues.
What is the matter of complaint in this case? Simply that one of the executors (the one now deceased,) was indebted to the testator at the time of his death, and to secure the payment of that debt, had executed a mortgage to the creditor, and that of this debt, and of the property conveyed by the mortgage, no notice was taken by the executors, in their inventory, of the property or lists of debts due to the deceased returned by them to the orphans court. The executors answered, and set forth their reasons for not returning a debt which, as they supposed, had no longer existence. Issues were directed, and the next matter in dispute was, whether Marriott, who was an executor, though not the debtor executor, should be a party defendant. Of this question this court has disposed, as stated already. MeKim, who, by the order of this court, was to be a defendant, has died, and now the question is, who can properly be defendants in the trial of these issues, if, for reasons hereafter to be stated, it be not unnecessary to try them?
It would seem that a trial of those issues is quite unnecessary. If, in the trial of them, Marriott, and Marriott alone, is to be a party defendant, no verdict which could be rendered, would establish the claim against the estate of David T. McKim, no person having an interest in that estate being a party to the trial.
If it be said that Marriott was bound to return the debt before the death of his co-executor, the answer is, that there is now no such question before the court below, such a question can only rise in an action upon his testamentary bond, or in some other form to be instituted elsewhere. If it be contended that the trial of those issues is necessary to enable the court below to decide whether Marriott ought not now (and when he is sole executor,) to be directed to make such a return, the an[39]*39swer is, that any such order has become unnecessary, inasmuch as the return has been made by him.
It has been said, indeed, that the return now made is defective, inasmuch as it does not state whether the debt is sperate. The appellant says, and this is no where denied, that he conscientiously believes that the debt does not exist, and he believes that the debt does not exist, and he believes it because the creditor, in his life time, so informed him, and he has seen a receipt in full execuied by him. It would be difficult to say of such a debt, that it is either sperate or desperate. The case, indeed, is a very extraordinary one. It is not denied that the debt has been paid. If the creditor is to be believed, he has declared it in conversation, and also in the form of a receipt in full, and it will be a singular issue, if, in the trial of it, each party is to rely on the testimony of the other, to discredit his own declarations. There seems to be a misconception of the order of this court passed on the former appeal, which, it seems to be thought, took from the court below the power, in any respect, to change their order, further than by directing the name of William H. Marriott to be inserted in it as a co-defendant. This surely is a mistake. This court has never decided that a trial of those issues is necessary, in order to the correct determination of the matters in controversy between the parties. It has decided nothing, except that William H. Marriott ought to be a co-defendant.. To make the decree upon the former appeal intelligible, it may be likened to ‘d.procedendo issued in any other case which directs the court below to proceed in the cause as if no trial had taken place, or any appeal had been prosecuted. Yet no body doubts that, notwithstanding the words of such a writ, the court below, when in possession of the case, can change entirely the issues, may make a new case, can convert an action of slander into an action of trover, or upon a promissory note, and therein is manifested no disobedience to the superior court; so, upon the return of this case to the orphans court, other issues might be found necessary; and if so, might rightfully be added, or the petition might be altered, and this might require, in order to its deter-[40]*40initiation, other issues to be framed. Indeed, according to the argument for the petitioners, a change of the issues is necessary, for now the thing of which he complains is not that no return of the alleged claim has been made, but that the return is not in every respect conformable to the act of Assembly.
The truth is, that pending the controversy which gave rise to these issues, the case has been changed, and is like a case sent back by a proceeding, in which, pending the appeal, or in consequence of the decision of the court above, the party impleaded has done everything which he is required by his adversary to do.
It is made known to us, by the parties, that the controversy is between members of the family of Mr. McKim, claiming as legatees, and his executors, the former alleging that a debt due from one of the executors to the testator, ought to be returned to the orphans court, and the other relying on Mr. McKim’s receipt for the debt. Its
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Magrtider, J.,
delivered the opinion of this court.
What was decided by the court, on the former appeal between these parties, will appear by the decree then passed, and not by a reference to the points made and argued by either of the parties. This court determined, and could only determine, that so much of the order of the court below “as excluded the said William H. Marriott from being a co-defendant in the trial of said issues in said county court, be reversed, and simply directed the said orphans court to make the said William H. Marriott a party to the said issues, to be sent and tried in the said county court.”
Touching any other matters in controversy between these parties, the court intimated no opinion. It was simply a decision by this court, that in the trial of issues like these, it is usual and proper to make all the executors parties to defend, and in this case the usual practice should not be departed from. It did not, and could not provide for events not to be foreseen; such as the death of any of the persons, by the decree required to be made parties. ’
The death of Me Kim, the other executor, certainly puts it out of the power of the court below to name the original parties as the parties when the issues are to be tried, to make Marriott a co-defendant, as the individual whose co-defendant he was to be, can no longer be associated with him, and especially as this court was bound to know that Marriott was, in interest, a co-plaintiff.
It is insisted by the appellant, that although it might be proper, while the other executor was alive, to make the appellant a co-defendant, yet, in the trial of the matters now in controversy, (if a trial of them has not become unnecessary,) he cannot, with any propriety, be made sole defendant, if a defendant at all. Surely, in osder to decide this simple question, it is not necessary for us to examine all the matters in controversy, which have existed, or may arise between these parties. Is[38]*38sues are to be directed and tried, when the facts in issue must be ascertained before the court can pass any order properly required of it, and when the court is authorised to pass some order grounded in whole or in part upon the facts to be found and ascertained by the trial of the issues.
What is the matter of complaint in this case? Simply that one of the executors (the one now deceased,) was indebted to the testator at the time of his death, and to secure the payment of that debt, had executed a mortgage to the creditor, and that of this debt, and of the property conveyed by the mortgage, no notice was taken by the executors, in their inventory, of the property or lists of debts due to the deceased returned by them to the orphans court. The executors answered, and set forth their reasons for not returning a debt which, as they supposed, had no longer existence. Issues were directed, and the next matter in dispute was, whether Marriott, who was an executor, though not the debtor executor, should be a party defendant. Of this question this court has disposed, as stated already. MeKim, who, by the order of this court, was to be a defendant, has died, and now the question is, who can properly be defendants in the trial of these issues, if, for reasons hereafter to be stated, it be not unnecessary to try them?
It would seem that a trial of those issues is quite unnecessary. If, in the trial of them, Marriott, and Marriott alone, is to be a party defendant, no verdict which could be rendered, would establish the claim against the estate of David T. McKim, no person having an interest in that estate being a party to the trial.
If it be said that Marriott was bound to return the debt before the death of his co-executor, the answer is, that there is now no such question before the court below, such a question can only rise in an action upon his testamentary bond, or in some other form to be instituted elsewhere. If it be contended that the trial of those issues is necessary to enable the court below to decide whether Marriott ought not now (and when he is sole executor,) to be directed to make such a return, the an[39]*39swer is, that any such order has become unnecessary, inasmuch as the return has been made by him.
It has been said, indeed, that the return now made is defective, inasmuch as it does not state whether the debt is sperate. The appellant says, and this is no where denied, that he conscientiously believes that the debt does not exist, and he believes that the debt does not exist, and he believes it because the creditor, in his life time, so informed him, and he has seen a receipt in full execuied by him. It would be difficult to say of such a debt, that it is either sperate or desperate. The case, indeed, is a very extraordinary one. It is not denied that the debt has been paid. If the creditor is to be believed, he has declared it in conversation, and also in the form of a receipt in full, and it will be a singular issue, if, in the trial of it, each party is to rely on the testimony of the other, to discredit his own declarations. There seems to be a misconception of the order of this court passed on the former appeal, which, it seems to be thought, took from the court below the power, in any respect, to change their order, further than by directing the name of William H. Marriott to be inserted in it as a co-defendant. This surely is a mistake. This court has never decided that a trial of those issues is necessary, in order to the correct determination of the matters in controversy between the parties. It has decided nothing, except that William H. Marriott ought to be a co-defendant.. To make the decree upon the former appeal intelligible, it may be likened to ‘d.procedendo issued in any other case which directs the court below to proceed in the cause as if no trial had taken place, or any appeal had been prosecuted. Yet no body doubts that, notwithstanding the words of such a writ, the court below, when in possession of the case, can change entirely the issues, may make a new case, can convert an action of slander into an action of trover, or upon a promissory note, and therein is manifested no disobedience to the superior court; so, upon the return of this case to the orphans court, other issues might be found necessary; and if so, might rightfully be added, or the petition might be altered, and this might require, in order to its deter-[40]*40initiation, other issues to be framed. Indeed, according to the argument for the petitioners, a change of the issues is necessary, for now the thing of which he complains is not that no return of the alleged claim has been made, but that the return is not in every respect conformable to the act of Assembly.
The truth is, that pending the controversy which gave rise to these issues, the case has been changed, and is like a case sent back by a proceeding, in which, pending the appeal, or in consequence of the decision of the court above, the party impleaded has done everything which he is required by his adversary to do.
It is made known to us, by the parties, that the controversy is between members of the family of Mr. McKim, claiming as legatees, and his executors, the former alleging that a debt due from one of the executors to the testator, ought to be returned to the orphans court, and the other relying on Mr. McKim’s receipt for the debt. Its genuineness is not questioned, nor is a doubt intimated that the testator, when he executed it, understood its contents. The truth of the matter alleged by the testator himself, is the only thing denied, and the only question between the parties seems to be, whether this receipt, although it may have been executed by the creditor himself, with a knowledge of its contents, and of his own free will, is to have all the effect which it seems to be admitted it would have had, if, when the creditor signed, he had also sealed it. Without undertaking to decide a question which is not before us, we have stated what it seems the question really is, and will add a reference to 1st Greenleaf on Evidence, sec. 305, and the authorities there cited.
The petition which gave rise to this appeal, was filed by the appellees on the 19th June, 1848. It makes known to the court the death of David T. McKim, and asks that the issues aforesaid, as framed by petitioners, may be transmitted to Baltimore county court for trial, and that William IT. Marriott, as surviving executor of John McKim, Jr., be made defendant therein. This petition is answered by Marriott, who therein stales what he has done since the death of his co-executor. He has [41]*41done that which the original petition required to be done, and, therefore, a trial of the issues is unnecessary. To this, there is a replication which shows that the matter in controversy, and the admissions made by the parties, requires no matter of fact to bo astertained, the simple question in the case being whether a receipt in full, given by a father to his son, is nudum pactum. It is certainly no question whether the mortgagee can claim both the mortgage debt and the mortgaged premises. If the mortgagee chooses to be satisfied, and acknowledge, by competent testimony, that he has received the debt in full, this is usually treated as an equitable release of the mortgaged premises; and the absence of a formal release, and under seal, certainly, under such circumstances, could not make it the duty of the executors to return the mortgaged premises as a part of the property of their deceased testator, to be distributed among his legatees.
The court below, therefore, in its order of September, 1848, erred in directing those issues to be transmitted to the county court for trial, notwithstanding the death of David T. McKim, and the return then made by the surviving executors, and that in the trial of those issues, William H. Marriott, as the surviving executor of John McKim, Jr., be defendant. This court will sign a decree reversing the order with costs, and dismissing bill.
DECREE REVERSED.