By the Court,
Boise, J.:
In the pleadings issue is made as to the validity of the decree of foreclosure obtained by the appellant against James Taylor and John D. Walton, the administrators of Stephen Taylor, deceased. It is claimed that this decree, [321]*321■which is set out in the complaint, in substance is valid, and operates to foreclose the rights of the heirs of Stephen Taylor to the land in question, who were not made parties to that suit. The determination of this question depends on the construction of sec. 463, p. 206 of the code, which provides: “That all causes of suit by one person against another, however arising, survive to the personal representatives of the former and against the personal representatives of the latter. When the cause of suit survives, as herein provided, the executors or administrators may maintain a suit in equity thereon against the party against whom the cause of suit accrued, or, after his death, against his personal representatives. Independent of this statute, the heirs should have been made parties, for the lands of the ancestor descending to them by operation of law they have an estate in them which they have a right to protect, and by the law, as now settled in this state, the mortgagor is the owner of the fee, subject to the lien of the mortgagee.” (4 Or. 105.) And it is the settled law that the heir of the mortgagor should be a party unless the statute just referred to changes the rule.
. We will now proceed to consider what construction should be given to this' language of the statute. To give it a literal construction, it would mean that if there be a suit which one party may maintain against another, he may maintain the same suit against his executor. This language does not necessarily exclude heirs. To foreclose a mortgage a party must sue the mortgagor, and must also make persons having a lien subsequent to the lien of the mortgagee parties. (Code, 411.) This is to give subsequent lien-holders an opportunity to redeem the land; and there is the same necessity for making heirs parties, for they also have the right to redeem. Section 380 of the code seems to contemplate' that all persons who are to be affected by the decree should be made parties. No person should be deprived of his estate by a decree to which he is not made a party and vrlio has not had his day in court. (Story’s Eq. Pleadings, secs. 196, 415, 175; 2 Hill on Mort. 168, 170; 2 Van Santvoord, 75, 76.)
[322]*322It was not the intention of the statute to do more than provide that the executor should represent the estate of his decedent, so far as the same vested in him as trustee for the creditors and heirs, but the title descending to the heir, the executor does not represent the land or have in it the same estate that the deceased had. The executor and heir are both vested with interests in the land which they respectively represent, and the sum of these interests is equal to the estate which was in and represented by the deceased. This view may be taken of the statute and be consistent with the provisions of section 380 and of the well established practice of courts of equity in such cases.
In order to bind the heirs of Stephen Taylor in the suit of foreclosure named in the complaint, it was necessary that they should have been made parties, and that not having been done, their interest in the land was not foreclosed. It is claimed by the appellant that if said decree does not foreclose their interest in the land it is a valid and binding decree, so far as to establish the amount of appellant’s claim against the estate of Stephen Taylor.
To this proposition several objections are made by the respondents: 1. It is claimed by the respondents that the claim was not properly presented to the administrators. The claim, as presented, embraced the original debt of one thousand five hundred dollars and interest, less a credit of four hundred and thirty dollars, paid in gold dust. In presenting this claim the appellant has disregarded the settlement made by the parties, which is indorsed on the bond, and claimed by the respondents to have been substituted for the debt named in the bond which the mortgage was given to secure.
We will first consider the question of the validity of this new agreement. A suit was pending to foreclose this mortgage and enforce the obligation named in the bond, which suit was discontinued on the execution of this new agreement, which is indorsed on the bond, and is as follows:
“Beceived of Stephen Taylor, Bristow & Co.’s receipt for thirty-one ounces of gold dust, sent by them to be assayed, [323]*323and proceeds of same, estimated at about four hundred and sixty dollars, when paid, to be credited on this bond. And I hereby agree, on settlement this day made, to accept one thousand dollars in gold coin (including said proceeds of dust) and five hundred dollars in greenbacks, both to be paid as below mentioned, in full satisfaction of the within bond and mortgage. I am to discontinue the suit now pending in Benton county; the old mortgage to continue in security for said payments.
W. D. Renshaw.
“November 2,1865.
“I hereby agree, on settlement of this bond as above, to pay said Renshaw five hundred dollars, greenbacks, on or before Jan. 1, 1866, and also to pay in gold coin whatever said proceeds of dust lacked of making one thousand dollars, say about five hundred and forty dollars, more or less, on or before July 1, 1866, with ten per cent, interest thereon, and I am to pay costs of said suit and attorney’s fees. Stephen Taylor.”
“November 2, 1865.”
We think this agreement shows a sufficient consideration to ¿support it. It was the settlement of a pending suit whereby the appellant must have thought he was- securing to himself an advantage by getting a part of his debt and being relieved from this liability to pay the costs of the suit and the fees of his attorney incurred in prosecuting the same. This agreement was fully performed at the time and expressly substituted for the bond, and then became the agreement of the parties and binding on them. It was an agreement to take a less sum than that secured by the bond, in this, that interest was not included in it, but it was. a part of the same debt for the cattle and horses.
The appellant’s claim presented to the administrators for allowance included this unpaid balancé with interest. This was simply claiming of the administrators more than was due appellant from the estate, and in such a case the administrator should have allowed what was still due on this claim for cattle according to the new agreement. A question is made as to whether any claim was presented, but the [324]*324evidence shows that it was presented and rejected, and that the decree named in the complaint was not void for want of proper presentation of the claim to the administrators.
The appellant after the rejection of his claim, could bring an action against the administrators and establish this claim, or he could foreclose the mortgage. The latter is what he attempted to do against the administrators alone.
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By the Court,
Boise, J.:
In the pleadings issue is made as to the validity of the decree of foreclosure obtained by the appellant against James Taylor and John D. Walton, the administrators of Stephen Taylor, deceased. It is claimed that this decree, [321]*321■which is set out in the complaint, in substance is valid, and operates to foreclose the rights of the heirs of Stephen Taylor to the land in question, who were not made parties to that suit. The determination of this question depends on the construction of sec. 463, p. 206 of the code, which provides: “That all causes of suit by one person against another, however arising, survive to the personal representatives of the former and against the personal representatives of the latter. When the cause of suit survives, as herein provided, the executors or administrators may maintain a suit in equity thereon against the party against whom the cause of suit accrued, or, after his death, against his personal representatives. Independent of this statute, the heirs should have been made parties, for the lands of the ancestor descending to them by operation of law they have an estate in them which they have a right to protect, and by the law, as now settled in this state, the mortgagor is the owner of the fee, subject to the lien of the mortgagee.” (4 Or. 105.) And it is the settled law that the heir of the mortgagor should be a party unless the statute just referred to changes the rule.
. We will now proceed to consider what construction should be given to this' language of the statute. To give it a literal construction, it would mean that if there be a suit which one party may maintain against another, he may maintain the same suit against his executor. This language does not necessarily exclude heirs. To foreclose a mortgage a party must sue the mortgagor, and must also make persons having a lien subsequent to the lien of the mortgagee parties. (Code, 411.) This is to give subsequent lien-holders an opportunity to redeem the land; and there is the same necessity for making heirs parties, for they also have the right to redeem. Section 380 of the code seems to contemplate' that all persons who are to be affected by the decree should be made parties. No person should be deprived of his estate by a decree to which he is not made a party and vrlio has not had his day in court. (Story’s Eq. Pleadings, secs. 196, 415, 175; 2 Hill on Mort. 168, 170; 2 Van Santvoord, 75, 76.)
[322]*322It was not the intention of the statute to do more than provide that the executor should represent the estate of his decedent, so far as the same vested in him as trustee for the creditors and heirs, but the title descending to the heir, the executor does not represent the land or have in it the same estate that the deceased had. The executor and heir are both vested with interests in the land which they respectively represent, and the sum of these interests is equal to the estate which was in and represented by the deceased. This view may be taken of the statute and be consistent with the provisions of section 380 and of the well established practice of courts of equity in such cases.
In order to bind the heirs of Stephen Taylor in the suit of foreclosure named in the complaint, it was necessary that they should have been made parties, and that not having been done, their interest in the land was not foreclosed. It is claimed by the appellant that if said decree does not foreclose their interest in the land it is a valid and binding decree, so far as to establish the amount of appellant’s claim against the estate of Stephen Taylor.
To this proposition several objections are made by the respondents: 1. It is claimed by the respondents that the claim was not properly presented to the administrators. The claim, as presented, embraced the original debt of one thousand five hundred dollars and interest, less a credit of four hundred and thirty dollars, paid in gold dust. In presenting this claim the appellant has disregarded the settlement made by the parties, which is indorsed on the bond, and claimed by the respondents to have been substituted for the debt named in the bond which the mortgage was given to secure.
We will first consider the question of the validity of this new agreement. A suit was pending to foreclose this mortgage and enforce the obligation named in the bond, which suit was discontinued on the execution of this new agreement, which is indorsed on the bond, and is as follows:
“Beceived of Stephen Taylor, Bristow & Co.’s receipt for thirty-one ounces of gold dust, sent by them to be assayed, [323]*323and proceeds of same, estimated at about four hundred and sixty dollars, when paid, to be credited on this bond. And I hereby agree, on settlement this day made, to accept one thousand dollars in gold coin (including said proceeds of dust) and five hundred dollars in greenbacks, both to be paid as below mentioned, in full satisfaction of the within bond and mortgage. I am to discontinue the suit now pending in Benton county; the old mortgage to continue in security for said payments.
W. D. Renshaw.
“November 2,1865.
“I hereby agree, on settlement of this bond as above, to pay said Renshaw five hundred dollars, greenbacks, on or before Jan. 1, 1866, and also to pay in gold coin whatever said proceeds of dust lacked of making one thousand dollars, say about five hundred and forty dollars, more or less, on or before July 1, 1866, with ten per cent, interest thereon, and I am to pay costs of said suit and attorney’s fees. Stephen Taylor.”
“November 2, 1865.”
We think this agreement shows a sufficient consideration to ¿support it. It was the settlement of a pending suit whereby the appellant must have thought he was- securing to himself an advantage by getting a part of his debt and being relieved from this liability to pay the costs of the suit and the fees of his attorney incurred in prosecuting the same. This agreement was fully performed at the time and expressly substituted for the bond, and then became the agreement of the parties and binding on them. It was an agreement to take a less sum than that secured by the bond, in this, that interest was not included in it, but it was. a part of the same debt for the cattle and horses.
The appellant’s claim presented to the administrators for allowance included this unpaid balancé with interest. This was simply claiming of the administrators more than was due appellant from the estate, and in such a case the administrator should have allowed what was still due on this claim for cattle according to the new agreement. A question is made as to whether any claim was presented, but the [324]*324evidence shows that it was presented and rejected, and that the decree named in the complaint was not void for want of proper presentation of the claim to the administrators.
The appellant after the rejection of his claim, could bring an action against the administrators and establish this claim, or he could foreclose the mortgage. The latter is what he attempted to do against the administrators alone. This we hold he could not do without joining the heirs, if there were any, and as the presumption is that there are heirs unless • the contrary appears, we think the complaint was subject to a demurrer that it did not state facts sufficient to constitute a eause of suit, and showed that there was no jurisdiction in equity to grant the relief prayed for. We conclude, therefore, that the decree in that suit was wholly void which seems to have been the conclusion of the learned judge who tried this case in the circuit court.
That court proceeded to decree a foreclosure of the mortgage and ordered that the premises be sold to pay the amount,still due thereon, taking said new agreement as settling the amount, which was correct as before stated.
The case was referred to .a referee to ascertain the amount due on the mortgage under this new agreement, and also the amount of the rents and profits received by the appellant since he had been in possession of the premises under the sale on the decree referred to in the complaint.
It is claimed by the appellant that the court had no authority to make such a reference. He had such a right for the reason that it appeared in the pleadings that appellant went into the possession and had retained it. Where the plaintiff, who is a mortgagee, makes this admission in his complaint, it is a confession that he has received the rents and profits, and ought to account for them to be applied to extinguish the mortgage debt. It is proper for the court to appoint a referee to take such account and find the amount of the rents and profits, which ought to be applied towards the extinguishment of the mortgage debt.
There is considerable discrepancy in the testimony of the witnesses as to the amount of the rents and profits, showing that persons have different opinions as to the value of the [325]*325premises. In such cases where the amount has been ascertained by an intelligent referee who has had ample opportunity to judge in the premises, the court should defer something to his judgment; and unless the same is manifestly erroneous accept his findings as conclusive; for having heard the witnesses he can better determine the value of the testimony.
There is another question made by the appellant which is this: It is claimed' that as under our statute the executor has the possession of the real property of his decedent, the rents and profits go to the executor or administrator and not to extinguish the mortgage debt. In this case the appellant has sued to foreclose his mortgage and acknowledges that he is in possession and has been for a long time. The administrators are not parties. The suit is between the appellant and the heirs.
The appellant being in possession, will not be allowed to say to his own advantage that his possession was other than lawful under the mortgage. It has been held by this court in Roberts v. Sutherlin, that a mortgagee in possession, with the consent of the mortgagor, after condition broken may maintain such possession until the payment is made. In this case, having received the rents and profits they should go to extinguish the debt. (4 Kent 166; 28 Cal. 309; 1 Hill, on Mortgages, 439.) It can be no disadvantage to the estate which is represented by the administrator, that the debt is in part canceled by the rents and profits in the possession of appellant. The appellant having already received a part of his debt secured by the mortgage has no claim for more than is due him, or to have the land condemned to be sold for a lien that has already been discharged.
Decree affirmed with costs.