June Term, 1860.

#### Stark and another vs. Brown.

Upon the death of a mortgagor of real estate, the equity of redemption descends to his heirs, and is not barred by a sale of the land under a decree of foreclosure in a suit to which the administrator only of the mortgagor is made defendant. There was nothing in the statutes in force in the territory of Wisconsin, in 1842, to change this rule.

A sale under such decree will, however, operate as au *assignment*to the purchaser, of the interest of the *mortgagee*in the mortgaged premises. The application of this principle is not affected by the fact, that the purchaser at such sale was one of the administrators of the holder of the mortgage, and, as such, one of the plaintiffs in the suit for its foreclosure.

Where, after the sale to such administrator under such decree, A, in a suit for that purpose, against such administrator and the widow and heir of such holder, obtained a decree, adjudging that *lie*was, at the time of such foreclosure suit and sale, the equitable owner of said mortgage, and was entitled to a conveyance from them of the mortgaged premises, and of all their interest therein, and quit-claim deeds for said premised were accordingly executed by *573them to him, and he afterwards made a warranty deed for said premises to B, who made a like deed therefor to C: *Held,*in ejectment hy the heirs of the mortgagor against C, that the above mentioned decree and deeds, although the latter contained no reference to the mortgage or mortgage debt, operated as a *trwmfer*to C of the interest which the *mortgagee*had in said premises, so that, after entry, C stood in the position of a mortgagee in possession, after default in the payment of the mortgage debt, and oould not be evicted in such action.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action by *David Drake*and *J. L.*Stark, for tbe recovery of an undivided fourth of certain land in'Milwaukee county. Tbe defendant admitted bis possession of tbe land, and claimed title thereto. On tbe trial, tbe plaintiff proved that one Pliny Drake died intestate at Milwaukee, in April, 1838, seized in fee of tbe land in controversy, leaving , surviving him bis mother and nine brothers and sisters, bis sole heirs at law. Of these heirs, *David Drake*was one, and bad received from bis mother and six of bis brothers and sisters a quit-claim deed -for their interest in said land, and bad after-wards quit-claimed one-half of Ms entire interest therein to bis co-plaintiff, *Stark.*

The defendant proved that letters of administration of tbe estate of Pliny Drake were granted to one Aldrich, in. November, 1888; that tbe inventory of said estate, filed by tbe administrator, showed personal assets to tbe amount of $94 84; that tbe report of tbe commissioners appointed to bear and adjust claims against said estate showed debts amounting to $393 89, besides expenses of administration; that among tbe claims allowed by said commissioners was an account of one William N. Gardner, against tbe deceased, in which tbe aggregate amount of tbe items debited was $269 38, among which items was tbe following: “ Balance due on note for $200, dated Oct. 14th, 1836, secured by mortgage, $206 53and tbe amount of tbe credits was $159 21, leaving a balance due to said Gardner of $110 17. Tbe administrator testified that be bad never closed up tbe estate, because tbe land having been sold on foreclosure, there was nothing left for payment of tbe debts.

Tbe defendant then read in evidence a mortgage, executed by Pliny Drake to one Isaac H. Alexander, upon an undi*574vided fourth of the quarter-section in which the land in con .troversy is situate, dated October 14th, 1836, to secure the payment of $400, according to the tenor of two notes of that date, executed by him to the said Alexander; also an endorsement upon said mortgage, dated Oct. 81st, 1836, by which it was recited that said Alexander, for value received, did thereby transfer to said William N. Gardner all his interest in said mortgage, and the notes accompanying the same, and did guarantee the payment of the money secured to be paid by said mortgage and notes, and that not more than $61 had been paid by the mortgagor on account of the moneys secured thereby. The defendant then offered to read in evidence the record of a suit in equity in the district court for Milwaukee county, in which Lindsay "Ward, Maria Gardner, and William B. Sheldon, administrators of William N. Gardner, deceased, were complainants, and said Aldrich, administrator of Pliny Drake, deceased, was the *sole*defendant, and purporting to be a suit for the foreclosure of the said mortgage executed by Pliny Drake to said Alexander; and also a deed for said mortgaged premises, made by a master in chancery of said court, to Lindsay Ward, the purchaser at the sale under the decree in said suit; offering at the same time, to show the decease of said William N. Gardner and the appointment of said complainants as his administrators. To the reading of this record and deed in evidence the counsel for the plaintiff objected; the court sustained the objection, and the defendant excepted. The defendant again offered to read the record of said foreclosure for the purpose of showing that the title of the assignee of the mortgage vested in the purchaser under the foreclosure, and to connect himself with the title of such purchaser by various mesne conveyances, but the court ruled that the evidence was inadmissible for that purpose, and the defendant excepted. The record thus excluded sets forth the bill of foreclosure filed by the administrators of William N. Gardner, against said Aldrich, as the administrator of said Pliny Drake; the proof of service of process; a decree for the sale of said mortgaged premises, rendered in November, 1842 (without any direction that the complainants might purchase at. such *575sale); tbe report by tbe master of bis sale and conveyance of tbe mortgaged premises to Lindsay Ward for $100, and tbe confirmation of said sale by tbe court.

Tbe defendants then offered proof that Lindsay Ward, Maria S. Gardner and William B. Sheldon were duly appointed administrators of William N. Gardner, deceased, before tbe commencement of said foreclosure suit, wbicb was admitted by tbe court, (tbe plaintiffs objecting to it as irrelevant), and also offered in evidence tbe record of a suit in chancery in tbe Hacine district court, in wbicb one Palmer Gardner was complainant, and Lindsay Ward, Thomas Wrigbt, Maria S. Wrigbt and William S. Gardner were defendants, to tbe admission of wbicb tbe plaintiffs objected, but tbe court overruled tbe objection, and tbe plaintiffs excepted. This record was in substance as follows: Tbe complainant, Palmer Gardner, alleged in bis bill, (wbicb was filed in 1846,) that about tbe 31st of October, 1836, bis brother, William N. Gardner, held as bis agent, an agreement between him and one Isaac H. Alexander, and on bis behalf and towards tbe payment of a balance due on said agreement, received, about that date, from said Alexander, tbe assignment of tbe mortgage hereinbefore mentioned as executed by said Pliny Drake to said Alexander, and of tbe debt secured thereby; that said William afterwards received from said Drake $178 on said debt, and accounted therefor to the complainant, but died soon afterwards, leaving said Maria S. bis widow, and William S. Gardner, an infant, bis only child; that bis administrators, finding said mortgage and notes among bis papers, supposed them to be a part of bis estate, and, in 1842, commenced a suit for tbe foreclosure of said mortgage in tbe district court for tbe county of Milwaukee, and upon a decree rendered in such suit, said mortgaged premises were sold to said Lindsay Ward, and the usual conveyance therefor made to him by tbe master; that said purchase was made by said Ward on behalf of tbe estate of said William N. Gardner; that in August, 1843, tbe said administrators made a settlement of said estate, with tbe probate court of Milwaukee county, and distribution of tbe personal estate was then made, and, among other things so distributed, was tbe land *576in controversy, one-third thereof to said Maria, and two-_ thirds to said William S., the same being represented by said administrators to be the proceeds of personal estate held by said Ward in trust for said heirs, to be distributed as such; that no conveyance had been made by said Ward of said land, and that said Maria and William S. had never taken possession thereof; that the complainant was entitled to the benefit of said foreclosure and sale, and to a conveyance of said land, upon payment of the amount due by him to the said estate for the services, disbursements, &c., of said decedent, which were admitted to amount to $150 (which he averred his readiness to pay), and that said Maria was at that time the wife of one Thomas Wright; Prayer, that an order be made directing that said Lindsay Ward, Thomas and Maria S. Wright, and said infant, William S., by his guardian, should convey said land to the complainant, on the payment of said sum of $150. The defendants were served with process, a guardian *ad litem*appointed for the infant, and such proceedings were thereupon had, that on the 20th of April, 1846, said court decreed that Lindsay Ward and his wife, the said Thomas and Maria S. Wright, and the said William S. Gardner, by his guardian *ad*litem, should execute quit-claim deeds of said land to said Palmer Gardner, upon his payment of said sum of $150 to said Thomas Wright, on behalf of said Maria S. Wright, and to said infant ; that said complainant was entitled to all the rights and interest of the defendants in said lands; and that the deed executed by the guardian of said infant, should be of full force when ajoproved by said court, or a master thereof.

The defendants also read in evidence a quit-claim deed from Lindsay Ward and wife to Palmer Gardner, for the undivided fourth of the quarter section embracing the land in controversy, dated Jan. 22,1846, and alike deed to Palmer Gardner, for the same land, from Tiros. S. Wright and Maria his wife, dated April 20, 1846, and a like deed to Palmer Gardner, for the same land, from William S. Gardner, by Iris guardian appointed for that spurpose, dated April 20, 1846, and indorsed “approved” by a master in chancery of said Racine district court, and a warranty deed for the same *577land, executed by Palmer Gardner to J. E. Gruenbagen, dated December 19th, 1846, and a like deed for tbe same land from said Gruenbagen and wife to tbe defendant, dated December 7th, 1852; to tbe admission of each of wbicb deeds tbe plaintiffs excepted.

Tbe circuit court instructed tbe jury, that “under tbe decree in said equity suit in Racine county, and tbe deeds executed by Lindsay Ward and wife, Thomas Wright and wife, and William S. Gardner, by bis guardian,’ respectively, to Palmer Gardner, and tbe deeds from Palmer Gardner to Gruenbagen, and from Gruenbagen to Brown, tbe defendant *Brown*acquired all the rights of mortgagee under said mortgage from Pliny Drake to Alexander, and being in possession in tbe right of mortgagee, could not be ousted by an action at law in tbe form attempted in tbis case to wbicb instruction tbe plaintiffs excepted.

Verdict and judgment for tbe defendant.

*Palmer*& */Starlc,*for appellants:

1. Tbe foreclosure proceedings against tbe administrator of Pliny Drake, and tbe master’s deed to Ward, were a nullity. Tbe heirs of tbe mortgagor were necessary parties to sucb a suit. Story’s Eq. PI, § 196, and cases there cited; 2 Barb. Cb. Pr., 176. By tbe statutes then in force in -tin's territory real estate *descended*to them, and therefore it vested in them *immediately*upon tbe death of their ancestor. Greenl. Cruise, _ title 29, chap. 2, § 1. Tbe administrator is not a proper ‘party to sucb suits, except (in some states) to enable tbe complainant to obtain a judgment for payment of a deficiency out of tbe estate in bis bands, (2 Barb. Cb. Pr., *ubi supra;*Story’s Eq. PL, 182-196; *Leonard vs.*Morris, 9 Paige, 90), and in tbis state no sucb judgment could be rendered, tbe statute having provided a different method for adjusting sucb claims. Tbe administrator could not redeem (1 Hill, on Mort., 864; Story’s.Eq. PL, 182; 2 Story’s Eq, Jur., 291; 4 Kent’s Comm., 162; 2 Barb. CL Pr., 193-4; 9 Johns., 611); nor was be, under our statutes prior to 1850, entitled to tbe possession, or tbe rents of tbe real estate. Judgment against him could not bind sucb real estate. Tbe court therefore bad no jurisdiction in these foreclosure proceedings; *578tbe beirs were not barred of their equity of redemption •, nor could the judgment operate to assign the mortgage toWard, or have any other effect 2. The quit-claim deed executed by Ward and wife to Palmer Gardner, could not convey his interest, as administrator, in the debt secured by the mortgage. 3. The deeds from Wright and wife, and William S. Gardner, to Palmer Gardner, conveyed no interest. Their deeds purporting to convey the fee of the mortgaged land, without reference to the note or to their interest as mortgagees, did not transfer that interest. Such an interest, before foreclosure, or possession taken, is not realty. 1 Hill, on Mort., chap. SI. It does not descend to the heirs, but goes to the personal representatives. 1 id., p. 249. It cannot be seized on attachment or execution. 4 Conn., 235. It is a mere lien on the land, a mere incident of the debt. 4 Conn., 235; 6 id., 159; 2 Burr., 978; 1 Branch, 110; 11 John., 534; 1 Pow., 252, n; 5 N. EL, 432. An assignment of the mortgage need not be in writing, (5 Rawle, 242 ; 3 Johns. Cases, 329; 1 John., 580; 4 id., 43; 11 id., 534); but the transfer of the debt carries with it, as an incident, all interest in the mortgage (1 Hill, on Mort., chap. 11; 4 B. Monroe, 532; 8 id., 287; 5 Cow., 202; 1 Penn., 280; 13 N. H., 249; 5 id., 420; 9 S. & M., 448; 10 id., 631, 120; 1 John., 580; 2 Burr., 978; 1 Blackf, 137; *10 Vt,*294); payment or tender *of*the debt, even after due, before foreclosure or entry by the mortgagee, extinguishes the lien, (26 Wend., 541; 18 John., 7; 5 Cow., 202 ; 2 Harris & McH, 17; 3 id., 399 ; 10 Ohio, 433 ; 6 Hill, 65; 2 Greenl. Cruise, p. 121, note); and after srrch payment, an assignee of the mortgage acquires no title by foreclosure and purchase at the sale. 5 Hill, 272. These doctrines are sustained by the decisions of this court. *Fisher vs.*Otis, 3 Okand., 83-95; *Martinmu vs. McCollum,*4 id., 153; *Croft vs. Bunster,*9 Wis., 503; *Cornell vs. FRchens,*11 Wis., 353. *“*A mortgage does not carry with it the debt, but the debt carries with it the mortgage.” 4 Chand., *supra.*Hence an assignment of the mortgage, or a conveyance of the land, by the mortgagee, without any transfer of the debt, is a mere nullity. 1 Kent’s Comm., 194, and note; 1 Hill, on Mort.; *Jaclcsonvs. Willard,*4 John., 41; *Jackson vs. Bron*
      *579
      *son,*19 id., 325; *Huntington vs. Smith,*4 Conn., 235; *Wilson vs. Troup,*2 Oow., 195; *Bell vs. Morse,*6 N. H., 205 ; 11 274; id., 298; 15 id., 145; 4 Foster, 484 ; 5 id., 425; 32 Me., 175; 4 Florida, 283; 9 Mis., 280; 2 Halsted’s Cb. B., 219; 4 Iowa, 434 ; 5 Cal., 334. Some cases in Mass, bold that where a second grantee of an equity of redemption bas procured a quit-claim from tbe mortgagee to himself, it will operate as an assignment and not as a discharge of the mortgage; but these cases depend on the principle in equity that upholds the security in such case for the protection of the releasee against the intervening title of the first grantee. *Hunt vs. Hunt,*14 Piet., 374; 1 Hill, on Mort., 496 *et seg.; Garll vs. Butman,*7 G-reenl., 102. Counsel also cited and distinguished *Oroolcer vs. Jewell,*31 Me., 306; *Givan vs. Doe,*7 Black., 210 ; and *Phillips vs. Bqnh of Lewistown,*18 Penn., St., 394. 4. The intention .of all parties in the suit brought by Palmer Gardner, was to perfect the absolute legal title to the land in Palmer Gardner, and not to assign the note and mortgage to him. Notwithstanding the decree in that suit, the note, if not paid, remained unsatisfied among the assets of ¥m. N. Gardner’s estate, and the mortgage, as a security therefor, remained undisturbed. Except as the decree authorized a conveyance for the infant, the deeds executed in pursuance of it, stand on the same footing as similar deeds from the same parties, without such decree, and are therefore of no effect. 5. Even if Palmer Gardner had become assignee of the note and mortgage, still his conveyance of the land, by warranty deed, to Gruenhagen, and that of the latter to *Brown,*neither of which referred to the note or the mortgage, could not have operated as an assignment of them. See authorities *supra.*6. Not only were the notes not produced, but there was no evidence that either of them remained-unpaid, and no trace of them since 1842. More than twenty years had elapsed from the time they fell due, before the commencement of this action. Was not the presumption conclusive from the lapse of time, that they were paid ?

*James S. Brown,*for respondent:

1. The foreclosure is not void, and cannot be impeached collaterally. The heirs had no more interest in the real than *580in tbe personal estate, until tbe final order of tbe court for distribution. E. S., 1839, pp. 301, 302, 304, 307, 316. That tbe administrator represented tbe real estate was settled in *Grignon vs.*Astor, 2 How. (S. C.), 319, 338. Since tbe late law in England, subjecting real estate to tbe payment of debts, it bas been beld that tbe beirs are not necessary parties for that purpose. *Story vs.*Fry, 1Y. & C. New E, 603; *Bridges vs.*Hinxman, 16 Simons, 71/ *Telfair vs. Boe's Ex’rs,*2 Branch, 407; *Collins vs. Griffith,*2 Pr.- "Williams, 313; *Madox vs. Jaclcson,*3 Atkyns, 405; Story’s Eq. PL, §§ 163 and 176. 2. But if tbe foreclosure failed to bar tbe beirs of their equity of redemption, still tbe defendant, as assignee of tbe mortgage in possession after default, cannot be disturbed by ejectment. (1.) That such assignee cannot be thus disturbed is beld in *Post vs. Arnott,*2 Denio, 344; *Merritt vs. Lambert,*7 Paige, 346; *Parsons vs, Welles,*17 Mass., 419; 5 Pick., 233; 16 How., 580; *Van Ness vs. Hyatt,*13 Peters, 298; *Jaclcson vs. Hull,*10 John., 480; *Astor vs. Hoyt,*5 "Wend., 617; *Phyfe vs. Riley,*15 id., 248; and in this state, *Gillet vs. Eaton,*6 Wis., 30; *Tallman vs. Ely,*id., 244. (2.) Tbe purchaser, under tbe foreclosure sale, acquired tbe rights of such an assignee. *Frische vs. Kramer's lessee,*16 Ohio, 125. Tbe mortgagee, being a party to tbe record, is, as between himself and tbe purchaser, estopped from denying tbe effect of tbe decree and sale, and tbe purchaser obtains all *the*rights of tbe mortgagee by estoppel. Tbe case of *Watson vs. Spence*is overruled in this state by *Ely vs. Tallman, supra.*(3.) Palmer Gardner, having been tbe real equitable owner of tbe notes and mortgage of Pliny Brake, tbe district court by its decree established bis title to “ all tbe rights and interest beld by tbe defendants ” in that suit. (4.) Tbe subsequent warranty deeds from Palmer Gardner to Gruenhagen, and from tbe latter to *Brown,*must be beld effectual to convey to tbe defendant tbe mortgage interest.- Tbe grantors having attempted to convey tbe absolute fee which they supposed themselves to possess, are estopped from denying that they conveyed tbe less interest which they really bad. A deed by tbe person owning tbe mortgage, of the whole mortgaged premises, conveys tbe mortgage interest. *Wilson*
      *581
      *vs. Troup,*2 Cow., 195; *Gillet vs. Eaton,*and *Tollman vs. Ely, supra.*A mortgagee, after default, Has a legal estate in the land, which may be conveyed by deed, subject to the debt- or’s right of redemption. See cases cited above, under (1.) See also *Philips vs. Banlc of Lewistown,*18 Penn. St, 394; *Givan vs. Doe,*7 Blackf., 210; *Gould vs. Newman,*6 Mass., 239; *Eunt vs. Hunt,*14 Pick., 374; 21 Ala., 497; *Oroolcer vs. Jewell,*31 Me., 306; 32 Me., 197; 24 Miss., 368. (5.) The assignment of a mortgage for a valuable consideration, carries with it the debt, as necessary to make such assignment effectual and valuable. In this case the deeds of the land, being virtual assignments of the mortgage, had the same effect. 3. Even if the defendant does not own the mortgage, he is in possession under the mortgagee and with his assent, and can no more be ousted by the mortgagor, by means of an action of ejectment, than could the mortgagee himself

October 15.

*By the Court,*

PAINE, J.

This was an action of ejectment. It was conceded that the title was originally in Pliny Drake, who died in April, 1838. The plaintiffs claim, one as one of his heirs, and both under the other heirs. The defendant claims under a foreclosure proceeding upon a mortgage executed by Pliny Drake, which was instituted after his death, and to which his administrator alone was made a party.

The defendant claims, first, that this proceeding was effectual to transfer the entire title to the purchaser at the foreclosure sale, divested of all right of the heirs; and secondly, if not, that it was at least effectual to transfer the interest represented by the mortgage, and that the subsequent deeds, through which he claims, must be held to operate as an assignment of that mortgage interest, so that he stands in the position of a mortgagee in possession after Condition broken, and cannot be ousted by ejectment. If either of these propositions can be sustained, it is conceded that the plaintiffs’ action must fail.

We agree with the plaintiffs, and, as it seems, with the court below, that the first is incorrect. The rights of the heirs — they not being made parties to the suit — could not *582be divested by the foreclosure proceeding. The argument of the defendant that it should have that effect, is founded upon what he claims to be an entire change in the policy of the law, from that which existed in England, under which the rule that heirs were necessary parties to a foreclosure was established. That change is in mating the land subject to the debts of the deceased, through a sale by his administrator, and in giving him, as our law now does, and as he claims it then did, the possession of the real estate during the administration. But we cannot concede to these changes, the effect contended for. Nor do we think, as argued by counsel, that these statutes make the interest of the heirs in the real estate, prior to an order for its distribution, precisely the same as their interest in the personal estate, leaving the administrator to represent both for all purposes. It is well known that the legal title to the personalty is vested in the administrator. But it could hardly be claimed that these statutes vest in him the legal title to the real estate. That must still be held to descend to the heirs, and vest in them on the death of the ancestor, subject to be divested by a sale for the payment of debts. They, therefore, have an immediate interest in the premises, which cannot be divested by a foreclosure to which they are not parties.

Counsel relied upon the case of *Grignoris Lessee vs. Astor,*2 How., 319, as establishing the proposition that “in a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is *in rem,*and the administrator represents the land,” &c. It is true that the court in that case asserted that doctrine, and held that the provision in the statute requiring notice to -be given to the parties interested, before the court should pass upon the application, did not affect its jurisdiction. Whether that is the law or not in this state with respect to sales by administrators, we shall not now attempt to decide. It is certainly not in conformity with a long list of adjudications that might be cited, among which are the following: *Bloom vs. Burdick,*1 Hill, 130; *Sherry vs. Denn, 8*Blackf., 542*; Givan vs. McCarroll, 1*S. & M., 351; *Lessees of Adams vs. Jeffries,*12 Ohio, 253; *Messenger vs. Kintner,*4 Bin., 97; *Schneider vs. Mc*
      *583
      *Farland,*2 Coms., 459; *Bank vs. Johnson et al., 7*S. & M., 449.

But we do not feel called upon to discuss the of that decision, for the reason that it must be held to relate . „ only to a proceeding by an administrator, under the statute, to sell the real estate for the payment of debts. Whemthe court said that the administrator represented the land, they meant in that proceeding. And it would be entirely unwarrantable to say that they intended to assert that he represented it for all purposes, so that a foreclosure suit to which he alone was a party would divest the rights of the heirs. There is a great difference between the two cases. In the one, the statute expressly authorizes and requires him to proceed for the purpose of making a sale. The design is to pay the debts of the estate, which is one of his most important duties. In the other case, it is conceded that there is no statute expressly requiring or authorizing him to be made a party to a foreclosure, and his character as a representative of the land for that purpose is sought to be derived entirely from the rights which the law gives him as to the possession, and as to obtaining a license to sell on a certain contingency. Even if the case in 2 Howard should be held to establish the doctrine that, on a direct statutory proceeding by him to effect a sale for the payment of debts, he is to be considered as the representative of the land for all the parties interested, so that the judgment would not be void, though such other parties had no notice, we do not by any means think it can have that effect with respect to foreclosure suits, or any other by which the title to property is sought to be affected.

But we think the defendant’s second position is well taken. And that is, that although the foreclosure sale had no effect to divest the interests of the heirs, the purchaser must be held to have acquired the mortgage interest. The counsel for the appellants have attacked the correctness of this doctrine. But it has already been passed upon by this court in a manner with which we are entirely satisfied. The case of *Watson vs. Spence,*20 Wend., 260, sustains the view of the plaintiffs. That of *Frische vs. Kramer's Lessee,*16 Ohio, 125, sustains the opposite view. And in *Ely vs.*Tallman, 6 Wis., 258, this court distinctly repudiates the doctrine of the *584former case, and approves that of the latter. TLe plaintiffs . contend that this case is distinguishable from *Ely vs. Tail-*man, by the fact that there some of the parties in interest were served with process, and made parties to the suit. But that was not so in *Frische vs. Kramer's Lessee.*The mortgagor was a party there, it is true, but he was made so after he had sold the property; and he had no more interest in it than had the administrator in this case, and possibly not as much. But we do not think the decision should turn upon the point whether somebody actually interested is made a party. ,On the contrary, the conclusion would seem to rest rather upon certain equitable considerations between the mortgagee and the purchaser. The former had full power at any time to assign all his interest to the latter. If he sees fit to invoke the agency of the law, not only to accomplish that assignment, but to divest all adverse rights and transfer them also to the purchaser, if by any reason he fails to accomplish the latter object, should that also defeat the former? It seems to us not. Even though technically a correct argument can be made against the validity of the judgment as such, it still seems to us that the proceeding ought to be allowed to operate as a mode by which the mortgagee voluntarily transferred his interest, at least, to the purchaser. ■ "Where the mortgagee has assented to the sale in that manner, and taken the purchaser’s money, this conclusion would seem to rest safely on the doctrine of equitable estoppel, whatever irregularities there might be in point of form. But here the property was bid in by one of the administrators of the assignee of the mortgage, who was one of the complainants in the suit. As such he would undoubtedly be held a trustee for the benefit of those interested in the estate, in a controversy between him and them. But there is no such controversy here, and we do not see that this fact has any material bearing upon the question.

It was subsequently discovered that the equitable title to the mortgage was in the brother of the assignee, and he, ratifying the foreclosure sale, commenced an equitable suit against the purchaser and all the other parties interested, to obtain a transfer of the interest acquired at that sale, to him*585self. Suet a transfer was adjudged, and deeds executed accordingly, and through them the title comes in a chain, to the defendant. It is now urged by the plaintiffs that, even conceding that the foreclosure sale operated as an assignment' of the mortgage interest, still these deeds cannot beheld to have operated in the same way. This conclusion is derived from the fact that the mortgage is a mere incident of the debt, and that a deed of the land neither purports to, nor does assign the debt, and therefore the mortgage interest in the land cannot be held to pass. There are some cases apparently sustaining this position, as *Jackson vs. Bronson,*19 John., 325. It is a very short case, and the circumstances are not fully stated. The court said: “ The assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered in law as a nullity.” But the court do not discuss the question whether, under any circumstances, such an assignment could be held to transfer the debt, and thus become operative as an assignment of the entire mortgage interest. The same question is discussed in *Wilson vs. Troup,*2 Cow., 195. The mortgagee had there sold parts of the mortgaged premises by warranty deed, and the question was, whether he afterwards had the right to foreclose. Several opinions were delivered. Wood-WORTH, justice, uses general language in terms applicable to a case where the mortgagee had conveyed the whole land, and holds that such a conveyance would not operate as an assignment of the mortgage. SutherlAND, J., on the other hand, makes the case turn on the point that he had only sold a part of the property, and Savage, C. J., concurs upon the same ground.

Other cases cited by the plaintiffs hold that a mere deed of the land by the mortgagee does not operate as an assignment of the mortgage and debt, yet clearly imply that, under certain equitable circumstances, it might have that effect. Such is the case of *Bell vs. Morse,*6 N. H., 205, where the court say that they “have no doubt that, under certain circumstances, a conveyance of the land by the mortgagee will pass the debt secured by the mortgage.” And they further imply that it would be sufficient if it appeared *586that the mortgagee, at tbe time, bad a right to transfer the debt. The same idea is suggested in subsequent cases in that state, though not decided. " *Ellison vs.*Daniels, 11 N. H., 283. In *Weeks vs.*Eaton, 15 N. H., 145, while holding that the facts of that case brought it within the rule as previously decided, the court intimate that if the amount of the claim had been liquidated, it “ might have been assigned by a deed of the land, with warranty.” And again in *Furbush vs.*Goodwin, 5 Post., 450, it is said that *“*the doctrine of the cases is, that a mere quit-claim deed, purporting to be a conveyance of the land mortgaged, will not pass the debt,” &c., implying still that a warranty deed might, under certain circumstances, have that effect.

On the other hand, in the case of *Hunt vs.*Hunt, 14 Pick., 374, there is a well reasoned opinion, deciding that a quitclaim deed by the mortgagee, of his interest in the land, would operate as an assignment of all his rights as a mortgagee. And the same doctrine is held in *Carll vs. Butman,*7 Greenl., 102, and in *Crooker vs. Jewell,*31 Maine, 306. It is suggested by counsel in their brief, that *“*these cases depend upon the principle of equity that upholds the security in such case for the protection of the releasee against the intervening title of the first grantee.” This suggestion is doubtless based upon the facts in *Hunt vs. Hunt,*where the assignee of the mortgage was the second purchaser also of the equity of redemption. The court kept the mortgage interest alive after its assignment to him, so as to protect him against the prior conveyance of the equity of redemption. But the question whether that interest should be kept separate for his benefit, after he obtained it, is entirely distinct from the one whether he had obtained it. The equitable principle alluded to relates entirely to the former question, and has no bearing upon the latter. On the contrary, the conclusion upon that seems to rest upon another equitable principle, which is, to give some effect to the intention of parties in their deeds, if, consistently with the rules of law, they can have any effect.

In addition to these cases, we may say that the ease of *Frische vs. Kramer's lessee*seems necessarily to show that a *587deed, of tbe land in sucb a case should operate as an assignment of tbe mortgage interest. That case gave sucb an effect to a deed on a foreclosure sale, though it no more purported to assign tbe debt or tbe mortgage than did tbe subsequent deeds in this case from tbe purchasers at tbe foreclosure sale. We have followed that case upon that point, and I am unable to see why tbe same reasoning should not bold good with respect to a deed directly from tbe mortgagee. If by procuring tbe officers of tbe law to make a deed, in a case where no jurisdiction was obtained over adverse parties, tbe mortgagee is held to have assigned tbe mortgage, by tbe same reasoning tbe purchaser, supposing himself to have acquired tbe entire title, should be held to have assigned it by a deed purporting to have conveyed tbe land. See *Warder vs. Tainter,*4 Watts, 270. We think,- therefore, that tbe court below was right in bolding that tbe defendant bad acquired tbe mortgage interest, and stood in tbe position of a mortgagee in possession after condition broken, not to be ousted by ejectment.

It is urged that tbe note should be accounted for or produced. But no exception seems to have been taken on that point at tbe trial, other than in connection with tbe admissibility of tbe deeds. Tbe court was not asked to submit any question as to its payment to tbe jury. And there was no evidence tending to .show payment, and we think no presumption of it arises from lapse of time, under tbe circumstances of this case, where all the parties have evidently acted on the supposition that the note was merged in tbe decree.

We think, upon tbe whole, there was no error, and tbe judgment must be affirmed, with costs.