#### Andrew Ritchie, Administrator, &c., *versus*Elizabeth Williams and James Williams.

A. mortgagor being made executor by the mortgagee, and having included the mortgage in an inventory of his testator’s estate, returned by him into the probate office, he afterwards mortgaged the same premises, with covenants of warranty, &c., as collateral security for his own promissory note; after which he, as executor, assigned the original mortgage; the assignee recovered possession in an action against the assignor; and it was holden, that the assignee of the second mortgage was entitled- against the assignee of the first mortgage.

This was a real action, in which the said *Ritchie,*as he is administrator *cum, testamento annexa*of *Duncan Ingraham,*deceased, demands possession of sundry pieces of land described in his writ; and his title to the same .was submitted to the opinion of the Court upon the following facts, stated and agreed by the parties: —

*James Williams,*

one of the tenants, on the 9th of August, 1802, made and executed to his father, *James Williams,*a certain bond for the payment of 2000 dollars’, in annual instalments of 200 dollars, until the whole should be paid, with interest annually; and as collateral security therefor, also made and executed to his said father a deed of mortgage, containing the two parcels of land first described in the writ. Afterwards the father died, not having entered for condition broken ; and in his last will and testament, which was proved on the 13th of February, 1804, is the following clause: “ *I devise and bequeath to*Elizabeth, *my wife,*[the said *Elizabeth*being the other tenant,] *the income, use, and occupation, of all my e.itate, real, personal, and mixed, for and during the term of her natu**53*rai*life; ” and therein appointed the said *James,*the tenant, and another son, *John Williams,*his executors. The said *James*alone accepted the trust, and gave bond according to law. He shortly after rendered an inventory of the estate of his father, in which the above-mentioned bond and mortgage are specified; but he never settled any account of his administration in the probate office. On the 6 th of November, 1809, the said *James*made and executed a deed of mortgage of the demanded * premises [ * 51 ] to one *Ebenezer Williams,*as collateral security for a note of hand of that date for the sum of 4000 dollars, with interest payable quarterly, made by said *James*to said *Ebenezer;*which note and mortgage were assigned on the same day to *Duncan Ingraham,*the demandant’s testator. In the said mortgage deed are contained the usual covenants against encumbrances and for warranty. Afterwards the said *James,*on the 20th of December, 1811, in his capacity of executor, executed an assignment of said first deed of mortgage, and the bond referred to therein, to the said *Elizabeth;*all which deeds have been regularly executed and duly recorded. The said *Elizabeth*brought an action against the said *James*in his natural capacity, and recovered judgment by default for the said two parcels of land first ’ described, and received possession on the 17th of June, 1812, as will appear of record. The said *Elizabeth*disclaims as to all the land demanded in this action, except the said two parcels, of which she is in possession, the said *James*being in possession of the remainder. It was agreed that the Court should render judgment as if these facts had been found by a special verdict, and that the party prevailing should have costs.

*Ritchie.*

The bond for which the first mortgage was security is, by operation of law, released and extinguished by the obligor’s being made executor of his obligee; and consequently the mortgage collateral to it is released. In support of this principle, the authorities are uniform, (1) although there are cases where the executor is bound to account for his own debt as assets; (2) none of which, however, apply to this case. And even in those cases where the debt is not released, so as to exempt the executor from accounting for it, the character of it is changed, the law supposing it to remain in the hands of the executor as money. (3) The condition of the first mortgage is therefore complied with, *viz.,*that so much money shall be paid to the executor of the mortgagee. The law considers

*54that he has actually received it, and makes him accountable as *executor*for it.

[ * 52 ] * Independently of the ground of a release in law, the demandant contends that *James Williams,*the executor, did, *in fact,*by his covenants in his second mortgage, release and annul the first mortgage. By our statute, (4) when the mortgagee shall decease before he has taken possession, the debts due on mortgage, and *the land mortgaged,*shall be assets in the hands of the executor, who shall have the same control and power of disposal of the land mortgaged as of a personal pledge. In the case at bar, the mortgage and equity of redemption both subsisting in *J. W.,*the executor, he has exercised his power of disposal of them, having conveyed them both to the demandant’s testator, with covenants against all encumbrances and claims. Although in this deed he has not named himself executor, yet when one does an act which he could not do but by virtue of a delegated authority, he shall be presumed to have executed it by virtue of the authority. (5) A deed of bargain and sale, acknowledged and recorded, having, in this state, without an entry by the grantee, the force and effect of a feoffment, (6) whatever rights subsisted in *J. W.*relative to the land; were conveyed to the demandant’s testator. (7) No rule of construction can be so unreasonable as to allow one, as executor, to retain an estate in mortgage after having executed a deed purporting tc convey the whole estate without restrictions; (8) and if he would himself have been estopped from demanding the land against his own deed, his assignee, with notice, shall have no better right.

*G. Sullivan,*for the tenants.

The notion of a debt being extinguished by the appointment of the debtor to be executor of the creditor’s last will, has arisen from limiting the definition of *debt*to a right to recover a sum of money by action ; and it must be acknowledged, if that was the only legal signification of the word, it would not be easy to combat the proposition deduced from it. But the word *debt*has other legal significations. It is a sum of money due by contract or by record; or it is an obligation to pay [ *53 ] a sum of * money. The right of action may be suspended, or even extinguished, and the debt still remain.

The right and the remedy are very distinct; and amidst the confusion in the books on the subject, all are agreed that a debt due from the executor remains as assets in his hands for the benefit of creditors. (9) And wherever the testator’s intention is apparent that the *55debt shall not be extinguished, it is not extinguished. (10) Here the testator’s intention is plain, for he gave this to his wife. Sc where the executor- renounces the executorship, the debt is not extinguished ; *a fortiori*where, as in the case at bar, by including this bond and mortgage in the inventory, and by assigning them to *E. W.,*he renounces his claim to the extinguishment itself. The want of chancery jurisdiction is more than supplied here, by the executor’s bond to the judge, and the powers of the Courts of Probate.

But we contend that this property did not go to the executors. It is expressly devised to the testator’s wife. As executor, he had no rights or authorities in this instance, but to foreclose the mortgage. (11) The deed to *E. Williams*conveyed all the estate which *J. W.*had in the land in his own right; but the construction ought not .to be extended so as to include a title which he held *in autre droit.*Nothing passed by that deed but the grantor’s right in equity to redeem.

(1)

*Co. Lit.*269, b.— 8 *Co.*136.— *Toller’s Exrs.*348.— 1 *Comyns on Contracts*541. — 1 *Bos. & Pul.*630. — 2 *Johns.*471.

(2)

 2 *Bl. Com.*516. — *Plowd.*184. — 2 *Br. Ch. Rep.*110. — 4 *Br. Parl. Rev.*159.

(3)

 1 *Salk.*300, *Wankford*vs. *Wankford.*

(4)

*Stat.*1788, c. 51, § 1.

(5)

 1 *Salk.*96, *Parker*vs. *Kelt.*

(6)

6 *Mass. Rep.*32, *Marshall*vs. *Fish.*

(7)

*Shep. Touch.*204.

(8)

*Ibid.*83

(9)

*Went. Off. of Executors,*31. — 2 *Bl. Com.*511. — *Plowd.*186, *Woodward*vs *Darcie.*— *Shep. Touch.*497

(10)

 Y*elv.*160, *Flud.*vs. *Rumcey.*

(11)

5 *Mass Rep.*240, *Willard*vs. *Nason.*

*Per Curiam.*

Without deciding whether the mortgagee being made executor of the mortgagor is an extinguishment of the dept (a) in the present case, *James Williams*having conveyed the property as discharged of all encumbrances, it must be considered as discharged of the mortgage before made by him to his testator. The demandant has, then, shown a good title, and is entitled to a recovery.

*Judgment for the demandant*

(a)

 The debt is considered as having been paid to the executor, and becomes assets in his hands. *Freakly*vs. *Fox,*9 *B. & Cr.*130. — *Went. Ex.*14th ed. 74. — *Wankford*vs. *Wankford,*1 *Salk.*299.— *Cheltham*vs. *Ward,*1 *B. & P.*630. — *Bigelow*vs. *Bigelow, 4 Hammond, R.*138. — *Stevens*vs. *Gaylord,*post, 256.— *Winship*vs. *Bass,*12 *Mass. Rep.*199. — *Has & Al.*vs. *Jackson & Al.*6 *Mass. Rep.*149. — *Talman*vs. *Wood,*1 *Cox, N. J. R.*153.—3 *Powell, Mortg.*1044. — The debt being paid, the mortgage was thereby discharged. — *Gray*vs. *Jenks & Al.*3 *Mason’s Rep.*520. — *Vose*vs. *Handy,*2 *Greenl. 322.—Rosevelt*vs. *Stackhouse,*1 *Cowen,*122. — *Hatch*vs. *White,*2 *Gall.*155. — *Jackson*vs. *Crafts,*18 *Johns.*114. — *Jackson*vs. *Randall,*18 *Johns.*7. — *Paxton*vs. *Paul,*3 *Har. & M’Hen.*399. — *Morgan*vs. *Davis,*2 *Har. & M’Hen.*7. — *Dean*vs *Spinning,*1 *Hals*471.—2 *Hals.*407.