Sheldon v. Smith

97 Mass. 34

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1867
• Status: Published

Opinion

Hoar, J.

The demandant brings a writ of entry to foreclose a mortgage, describing himself as administrator of the mortgagee. The tenant, under the plea of nul disseisin, specifies as a defence that the demandant was not administrator. At the trial it appeared that the demandant was not administrator, but executor ; and the question presented by the bill of exceptions is whether this variance is fatal.

It is apparent that the right of an executor and administrator to maintain an action to foreclose a mortgage, is the same under our statutes. Each sues as the personal representative of the deceased mortgagee, and the land, when recovered, is assets of the estate he represents. In a writ of entry, it is provided by statute that the demandant shall declare on his own seisin, and shall not be required to prove an actual entry under his title; but if he proves that he is entitled to such an estate as he claims in the premises, whether as heir, devisee, purchaser, or otherwise, and also that he has a right of entry therein, this shall be deemed sufficient proof of his seisin as alleged in the declaration. Gen. Sts. c. 134, §§ 2, 3. When the suit is to foreclose a mortgage, the seisin must be alleged to be “ in mortgage ; ” but the mortgagee may declare on his own seisin, as in other cases. Gen. Sts. c. 140, § 3. If a mortgagee or assignee of a mortgage dies without having obtained possession of the mortgaged premises, his executor or administrator may take possession thereof, by open and peaceable enti-y or by action, in like manner as the deceased might have done if living. Gen. Sts. c. 96, § 9. From those provisions it would seem that the averment of the representative capacity in which the suit is brought is not essential to maintain it, and that the description of the demandant as administrator is only descriptio persona, not available as a defence in bar.

But it is doubtful whether there is any substantial misdescription. An executor is, in one sense, an administrator, and in the only sense material to the prosecution of this suit. He gives bond to “ administer according to law, and the will of the testator.” In Cook v. Griffin, reported in 1 Dane Ab. 581, it was held that the deed of one who sells as “ executor” is good, although the power from the court was to him as “administrator.” In Cooper v. Robinson, 2 Cush. 184, an executrix, under a license to sell real estate, sold as administratrix, and the sale was held good. The court in that case say, “ But we are of opinion that this is not such a misnomer or misdescription of the capacity in which the executrix acted as to invalidate the sale. By law she was bound to administer the testator’s estate, and to render a true account of her administration, and might therefore be described as administratrix, as well as executrix, although the latter would be the more appropriate description.” In Langdon v. Potter, 11 Mass. 313, in which it was held that the objection that the plaintiffs had not taken administration in this commonwealth might be taken by a plea in bar to their writ of entry to foreclose a mortgage, no question was made as to any distinction between letters testamentary and letters of administration. The plaintiffs had no representative capacity which entitled them to sue. Exceptions overruled.