The Chief Justice
delivered the opinion of the Court:
Upon the statement of this case, the following questions arise:
1st. Whether the bill was not effectually dismissed as to the estate of Wood by the order of the 5th of January, 1885? If not—
2d. Whether the right, if any, attempted to be enforced against the estate of Wood, by reason of the assumption in favor of Dixon, was not fully and completely barred by the Statute of Limitations, or the lapse of time, before the bringing of this suit. And if the right of the plaintiff as against the estate of Wood was either released or barred,
3d. Whether there can be, upon settled principle, any substitution of the plaintiff, as the representative of the mortgagee, to the position of Wood, with the right to enforce the covenant of Bryan made with and for the benefit of Wood? And—
4th. Whether, on the. facts of this case, the covenant of [55]*55Bryan in the deed from Wood, if it can be availed of at all, constitutes property or assets located in this District, belonging to the estate of the plaintiff’s intestate, for which Bryan, a non-resident, can be sued here.
i. With respect to the first of these questions, we entertain no doubt that it was the intention of the plaintiff, by the order of the 5th of January, 1885, to dismiss the bill as to-the representative of Wood’s estate, and that it was supposed at the time to have been effectually done. For this there was obvious reason. There was an action at law pending against the representative of that estate, in respect to the same subject-matter, and Wood, in his answer, had raised the question of the right of the plaintiff to pursue both remedies. The dismissal of the bill, therefore, was but a concession to the right and demand of Wood that the plaintiff should elect as between the two suits that were being simultaneously pursued in regard to the same subject-matter.
It is doubtless a general rule, as laid down in the books of equity practice, that the plaintiff may, as matter of course, dismiss his bill at any time before decree, upon payment of costs. The matter is within the control of the court, it is true, but that is for the protection of the defendant. 2 Dan. Ch. Pr., 928, 929., Here the defendant had demanded that the plaintiff should elect to dismiss either the bill in equity or the action at law, and therefore it is not to be supposed that either he or his representative would object to the dismissal, except perhaps, as to costs; but the costs are within the control of the court, and may be directed to be taxed against the plaintiff and that he pay them. As we have said, the plaintiff certainly intended to dismiss the bill as to the estate of Wood; and it has been held that after a.voluntary dismissal of a bill by the plaintiff, he will not be allowed to reinstate it, unless it be shown that there was surprise or mistake. Orphan Asylum v. M’ Cartee, 1 Hopk., 372.
It is urged, however, that the bill was only dismissed as against one of the executors of Wood, and that there still remained the son, the co-executor, against whom the bill [56]*56could be prosecuted. But we do not think that that is the fair construction of the order of dismissal, or that ■ such was the object intended to be accomplished by it. It is quite true, a bill may be dismissed as against one defendant, without being dismissed against the others; but that general rule does not apply to co-executors or administrators who are joint defendants. In regard to them, where there are several executors or administrators the general rule is, they must all be sued, though some of them be infants. Therefore, a plaintiff cannot, either as creditor or residuary legatee, bring a bill in equity against one co-executor only. It is said, however, in qualification of this general rule, that it is only necessary to sue so many of the executors or administrators as have acted; that this is sufficient at law and should be equally so in a court of equity. 2 Wms. on Exrs. (4th ed.), p. 1724. Here Mrs. Wood alone was the active executrix, in the administration of her husband’s estate, and the son, though joined with her in the will as an executor, had not, by reason of the fact of his absence, as may be supposed, taken any active part in the administration; and it was only after the death of his mother that he became active in the administration. The bill was dismissed, therefore, against the only active representative of the estate, and even upon the theory that it was the intention to retain the bill as against the son, it would have been left fatally defective for want of the active representative of the estate, as co-defendant, who had been voluntarily dismissed from it. In our opinion the bill was effectually dismissed as against the estate of Wood.
2. But even if the question just considered was supposed to be doubtful, we think there can be no doubt in regard to the second question; that is, as to the bar of the Statute of Limitations of the right asserted by the plaintiff against the estate of Wood.
In the case of Willard v. Wood, 135 U. S., 309, the question whether an agreement or assumption recited in a deed to pay an existing mortgage on the land by the grantee in the [57]*57deed, the deed being signed and sealed by the grantor alone, could be treated as being in the nature of a covenant under seal, and consequently a specialty obligation of the grantee, under the law of this District, the Supreme Court found it unnecessary to decide. There is no doubt, however, that, according to the settled doctrine of the courts of New York, and of some one or two other States, such unsigned and unsealed assumption to pay in a deed accepted by the grantee would be regarded as a covenant and a specialty, and an action of covenant could be maintained thereon, and’ the Statute of Limitations would only apply as to a specialty under seal. This is clearly shown by the cases referred to in the opinion of the Supreme Court in Willard v. Wood, and was so positively ruled in the case of Bowen v. Beck, 94 N. Y., 86. But in the District of Columbia, the common law prevails, except as it may have been changed or modified by statute. The terms specialty and covenant, as employed in the Statute of Limitations in force in this District, have well defined significations at the common law, and instruments or obligations embraced within the definition of those terms, have peculiar characteristics and incidents that distinguish them from other written obligations. It is, therefore, clear that, according to the priniciples of the common law, no mere agreement or assumption to pay, by a grantee in a deed, neither signed nor sealed by him, can be deemed or treated as a specialty or covenant, in this District. This, as we understand the argument on the part of the plaintiff, is not controverted, but it is contended that inasmuch as such assumption clause in the deed accepted by the grantee constitutes and is a specialty or covenant according to the laws of New York, where the deed was intended to operate, that this quality of the assumption, imputed to it by the laws of New York, constitutes a part of its nature and obligation, and therefore it ought, here and everywhere else, upon principles of international jurisprudence, to have accorded to it like validity, operation and effect.
This precise question was presented and fully considered in the well known and familiar case of the Bank of the [58]*58United States v. Donnally,
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The Chief Justice
delivered the opinion of the Court:
Upon the statement of this case, the following questions arise:
1st. Whether the bill was not effectually dismissed as to the estate of Wood by the order of the 5th of January, 1885? If not—
2d. Whether the right, if any, attempted to be enforced against the estate of Wood, by reason of the assumption in favor of Dixon, was not fully and completely barred by the Statute of Limitations, or the lapse of time, before the bringing of this suit. And if the right of the plaintiff as against the estate of Wood was either released or barred,
3d. Whether there can be, upon settled principle, any substitution of the plaintiff, as the representative of the mortgagee, to the position of Wood, with the right to enforce the covenant of Bryan made with and for the benefit of Wood? And—
4th. Whether, on the. facts of this case, the covenant of [55]*55Bryan in the deed from Wood, if it can be availed of at all, constitutes property or assets located in this District, belonging to the estate of the plaintiff’s intestate, for which Bryan, a non-resident, can be sued here.
i. With respect to the first of these questions, we entertain no doubt that it was the intention of the plaintiff, by the order of the 5th of January, 1885, to dismiss the bill as to-the representative of Wood’s estate, and that it was supposed at the time to have been effectually done. For this there was obvious reason. There was an action at law pending against the representative of that estate, in respect to the same subject-matter, and Wood, in his answer, had raised the question of the right of the plaintiff to pursue both remedies. The dismissal of the bill, therefore, was but a concession to the right and demand of Wood that the plaintiff should elect as between the two suits that were being simultaneously pursued in regard to the same subject-matter.
It is doubtless a general rule, as laid down in the books of equity practice, that the plaintiff may, as matter of course, dismiss his bill at any time before decree, upon payment of costs. The matter is within the control of the court, it is true, but that is for the protection of the defendant. 2 Dan. Ch. Pr., 928, 929., Here the defendant had demanded that the plaintiff should elect to dismiss either the bill in equity or the action at law, and therefore it is not to be supposed that either he or his representative would object to the dismissal, except perhaps, as to costs; but the costs are within the control of the court, and may be directed to be taxed against the plaintiff and that he pay them. As we have said, the plaintiff certainly intended to dismiss the bill as to the estate of Wood; and it has been held that after a.voluntary dismissal of a bill by the plaintiff, he will not be allowed to reinstate it, unless it be shown that there was surprise or mistake. Orphan Asylum v. M’ Cartee, 1 Hopk., 372.
It is urged, however, that the bill was only dismissed as against one of the executors of Wood, and that there still remained the son, the co-executor, against whom the bill [56]*56could be prosecuted. But we do not think that that is the fair construction of the order of dismissal, or that ■ such was the object intended to be accomplished by it. It is quite true, a bill may be dismissed as against one defendant, without being dismissed against the others; but that general rule does not apply to co-executors or administrators who are joint defendants. In regard to them, where there are several executors or administrators the general rule is, they must all be sued, though some of them be infants. Therefore, a plaintiff cannot, either as creditor or residuary legatee, bring a bill in equity against one co-executor only. It is said, however, in qualification of this general rule, that it is only necessary to sue so many of the executors or administrators as have acted; that this is sufficient at law and should be equally so in a court of equity. 2 Wms. on Exrs. (4th ed.), p. 1724. Here Mrs. Wood alone was the active executrix, in the administration of her husband’s estate, and the son, though joined with her in the will as an executor, had not, by reason of the fact of his absence, as may be supposed, taken any active part in the administration; and it was only after the death of his mother that he became active in the administration. The bill was dismissed, therefore, against the only active representative of the estate, and even upon the theory that it was the intention to retain the bill as against the son, it would have been left fatally defective for want of the active representative of the estate, as co-defendant, who had been voluntarily dismissed from it. In our opinion the bill was effectually dismissed as against the estate of Wood.
2. But even if the question just considered was supposed to be doubtful, we think there can be no doubt in regard to the second question; that is, as to the bar of the Statute of Limitations of the right asserted by the plaintiff against the estate of Wood.
In the case of Willard v. Wood, 135 U. S., 309, the question whether an agreement or assumption recited in a deed to pay an existing mortgage on the land by the grantee in the [57]*57deed, the deed being signed and sealed by the grantor alone, could be treated as being in the nature of a covenant under seal, and consequently a specialty obligation of the grantee, under the law of this District, the Supreme Court found it unnecessary to decide. There is no doubt, however, that, according to the settled doctrine of the courts of New York, and of some one or two other States, such unsigned and unsealed assumption to pay in a deed accepted by the grantee would be regarded as a covenant and a specialty, and an action of covenant could be maintained thereon, and’ the Statute of Limitations would only apply as to a specialty under seal. This is clearly shown by the cases referred to in the opinion of the Supreme Court in Willard v. Wood, and was so positively ruled in the case of Bowen v. Beck, 94 N. Y., 86. But in the District of Columbia, the common law prevails, except as it may have been changed or modified by statute. The terms specialty and covenant, as employed in the Statute of Limitations in force in this District, have well defined significations at the common law, and instruments or obligations embraced within the definition of those terms, have peculiar characteristics and incidents that distinguish them from other written obligations. It is, therefore, clear that, according to the priniciples of the common law, no mere agreement or assumption to pay, by a grantee in a deed, neither signed nor sealed by him, can be deemed or treated as a specialty or covenant, in this District. This, as we understand the argument on the part of the plaintiff, is not controverted, but it is contended that inasmuch as such assumption clause in the deed accepted by the grantee constitutes and is a specialty or covenant according to the laws of New York, where the deed was intended to operate, that this quality of the assumption, imputed to it by the laws of New York, constitutes a part of its nature and obligation, and therefore it ought, here and everywhere else, upon principles of international jurisprudence, to have accorded to it like validity, operation and effect.
This precise question was presented and fully considered in the well known and familiar case of the Bank of the [58]*58United States v. Donnally, 8 Pet., 361. In that case the action was brought in a court of Virginia on a promissory-note made in Kentucky, not under seal, but which, by the law of Kentucky, was declared to be and to have the effect of a specialty. The Statute of Limitations of Virginia was pleaded in bar, and the principal question was, whether the statutory bar applicable to an action on a promissory note as a simple contract constituted a bar to the action or not; and it was held that it did. Mr. Justice Story delivered the opinion of the court, and in the course of which he said:
“ The general principle adopted by civilized nations is, that the nature, validity and interpretation of contracts are to be governed by the laws of the country where the contracts are made or are to be performed. But the remedies are to be governed by the laws of the country where the suit is brought; or as it is compendiously expressed, by the lex fori. No one will pretend that because an action of covenant will lie in Kentucky on an unsealed contract made in that State, therefore a like action will lie in another State where covenant can be brought only on a contract under seal. It is an appropriate part of the remedy, which every State prescribes to its own tribunals, in the same manner in which it prescribes the times within which all suits must be brought. The nature, validity and interpretation of the contract may be admitted to be the same in both States; but the mode by which the remedy is to be pursued, and the time within which it is to be brought, may essentially differ. The remedy, in Virginia, must be sought within the time, and in the mode, and according to the descriptive character of the instrument, known to the laws of Virginia, and not by the description and character of it prescribed in another State. An instrument may be negotiable in one State, which yet may be incapable of negotiability by the laws of another State; and the remedy must be in the courts of the latter on such instrument according to its own laws.” And the learned judge concluded by declaring, that, conceding the promissory note sued on to be a specialty by the laws of [59]*59Kentucky, still it did not help the case, “ unless it were also a specialty, and recognized as such by the laws of Virginia; for the laws of the latter must govern as to the limitation of suits in its own courts, and as to the interpretation of the meaning of the words used in its own statutes.”
The opinion of the court was fortified by the citation, with approval, of the cases of Warren v. Lynch, 5 Johns., 239; Andrews v. Herriot, 4 Cow., 508; Trasher v. Everhart, 3 Gill & J., 234. And the doctrine of the case has been uniformly adhered to, without question, in all the subsequent cases occurring in the Supreme Court, in which like questions have arisen. Wilcox v. Hunt, 13 Pet., 378; Le Roy v. Beard, 8 How., 451; Pritchard v. Norton, 106 U. S., 124—133; cases referred to in,the opinion of the court in Willard v. Wood, supra.
It is clear, then, both upon principle and authority, that the assumption to pay the pre-existing mortgage on the land by the grantee, contained in the deed from Dixon to Wood, but not signed or sealed by the latter, cannot be deemed to be a specialty in this forum, and so to avoid the operation of the Statute of Limitations pleaded as a bar to the enforcement of a simple contract; but that assumption to pay, founded upon the acceptance of the deed by the grantee, was. good as a simple contract, and that provision of the Statute of Limitations of Maryland of 1715, Ch. 23, in force in this District, which declares that all actions on simple contracts shall be brought within three years after the right of action accrued, and not after, applies to this contract of assumption to pay; and if this were an action at law on such contract, the statute would, on the undisputed facts of this case, constitute a complete bar to the right to recover. But this is a proceeding in equity. The principle, however, is too well established to admit of controversy, that the Statute of Limitations is no less a bar to relief in equity than it is to a recovery at law. It is true, in matters of mere equitable rights or titles, courts of equity apply the statute simply by way of analogy to its application at law to legal rights or [60]*60titles of the same nature. But if the equitable right or title be not sued upon, within the time within which a legal right or title of the same nature ought to be sued upon to prevent the bar of the statute, the court applies the statute by analogy, and treats the right or claim as effectually barred. This principle is too firmly settled to need the citation of authorities for its support. And it follows that the right or claim of the plaintiff, as administrator, asserted against the estate of Wood, is completely barred.
3. Then, as to the liability of Bryan in respect to his covenant to pay, in the deed from Wood. The question whether such a liability exists depends upon the right of the plaintiff, as administrator of the assignee of the bond and mortgage, to be substituted to the right of Wood as against Bryan on the covenant of the latter. As we have seen, Dixon was a discharged bankrupt, and died in March, 1878, and there is no representative of his before the court. The covenant to pay the mortgage, in the deed from Wood to Bryan, creates no direct obligation on the part of Bryan to the mortgagee or his assignee; it is a contract between the vendor and vendee only, and over which the mortgagee has no control. It is, however, a settled principle that the purchaser of land subject to a mortgage, who assumes and agrees to pay the mortgage debt, becomes, in the contemplation of a court of equity, as between himself and his immediate vendor, the principal debtor, and the liability of the vendor, as between the parties to the contract, is that of surety. If the vendor pays the mortgage debt he may sue his vendee at law for the money so paid. Keller v. Ashford, 133 U. S., 624. And, by the application of a general principle of equity, that a creditor may obtain the benefit of all collateral securities, for the payment of the debt, which the surety for the principal debtor may hold for his indemnity, the mortgagee has been allowed to avail himself of covenants or agreements of a subsequent purchaser of the mortgaged ■ premises, assuming the payment of the mortgage debt — such subsequent purchaser occupying the position of principal debtor as between himself and his grantor.
[61]*61But, in applying this principle of equity in a case of this character, the decisions hold that “ the right of a mortgagee to this remedy does not result from any fixed or vested right in him, arising either from the acceptance by the subsequent purchaser of the conveyances of the mortgaged premises, or from the obligation of the grantee to pay the mortgage debt as between himself and his grantor. Though the assumption of the mortgage debt by the subsequent purchaser is absolute and unqualified in the deed of conveyance, it will be controlled by a collateral contract made between him and his grantor, which is not embodied in the deed. And it will not in any case be available to the mortgagee, unless the grantor was himself personally liable for the payment of the mortgage debt!’ “ The equity on which the mortgagee’s relief depends is the right of the mortgagor against his vendee, to which he, the mortgagee, is permitted to succeed by substituting himself in the place of the mortgagor.” Keller v. Ashford, supra; Crowell v. St. Barnabas Hospital, 12 C. E. Green, 650, 655. It would seem, therefore, to be clear, the mortgagee or his assignee can have no greater right than the mortgagor had against the grantee, and if the right of the mortgagor as against his grantee has become extinguished or barred, or in any manner released, the right of substitution is gone'. The mortgagee or his assignee can claim no rights superior to those of the party occupying the position of surety, the mortgagor, through whom he claims, and he is subject to any defenses that would be valid as against the claim of the mortgagor. 1 Eq. L. Cas. (Pt. I), 174, 175-
Now, as we have seen, the assumption to pay by Wood, the grantee of Dixon, the mortgagor, was by simple contract, and that contract had become subject to the bar of the Statute of Limitations before this suit was brought; and the defense of the statute invoked by Wood, was not only available to him, but to Bryan also, who was a succeeding grantee to Wood. Wood and his estate being discharged from the contract to pay the mortgage debt, his representatives could [62]*62not recover on the covenant of Bryan, as for indemnity, and as the mortgagee or his assignee can have no better right than either1 Dixon or Wood, it follows that he has no enforceable claim against Bryan.
4. But even supposing the right of substitution existed as against Bryan in favor of the mortgagee or his assignee, would the plaintiff, as administrator of the assignee, have the right to sue Bryan in this jurisdiction? Bryan is sued here as a citizen of the State of Colorado, and the bill was pending nearly nine years before process was served, and was then served upon an occasion when Bryan happened to be in this District on business. The plaintiff sues by virtue of letters of administration granted to him in this District, upon the personal estate of Frederick L. Christmas, deceased. These letters of administration were ancillary to the main or domiciliary administration of the deceased, in the State of New York. To authorize the grant of such ancillary administration here, it was necessary to show that some “ considerable part of the party’s personal estate ” was found here, or was reasonably supposed to lie here. Act of Md. of 1798, Ch. 101, Subch. 5, Sec. 2. This ancillary administration only extends to the assets of the intestate within this District, and all the authority given to the administrator is over the assets found existing in this jurisdiction, and not over assets existing elsewhere. Doolittle v. Lewis, 7 John. Ch., 45, 47; Boston v. Boylston, 2 Mass., 384; Story, Confl. of Laws, Secs. 514 b, 515. Whether, then, the obligation by covenant of Bryan, a citizen and resident of the State of Colorado, in a deed recorded and intended to operate in the State of New York, can be deemed to be a local asset of the estate of the deceased in this District, which vested in the administrator here, and entitled him to sue therefor, is a question that would seem to admit of but one answer, and that is in the negative. Not only is the covenant of Bryan, in respect of which he is sought to be held liable here, not found in this District, but the bond and mortgage, in respect to which the claim of the plaintiff is founded, are bona notabilia of the estate of the deceased in New York, and are not [63]*63assets to be administered in this jurisdiction. See upon this subject the cases of Smith v. Union Bank of Georgetown, 5 Pet., 525 ; and Noonan v. Bradley, 9 Wall., 405.
Being of opinion that there is no ground for the relief prayed, we shall 'dismiss the bill of the plaintiff with costs to the defendant.
Bill dismissed.