Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-11-12

the estate for distribution among the
heirs. To discharge this duty he of
necessity, be permitted to maintain a bill
ascertaining what may be due, if any
thing, on the mortgage
Merriam VS.. Barton, IA Vermont. 5l3.
1t will be noted that the right of the
Administrator to maintain al action to
redeem the intestate's land from a mort
gage is based upon the express provisions
Otthe law, making the lands assets in his
hands to be administered upon and Civ
ing to him the right of possession
thereof for the purposes Of administra-
ion. Notwithstanding our statute gives
the administrator appointed hereunder
the right of possession of the lands of the
intestate not exempted, and the right to
the rents, issues and profits thereof for
the purpose Of administration, and the
same become assets in his hands for the
payment Of debts, it cannot be claimed
OF maintained that he is entitled to the
possession of lands in another S ate aud
under another jurisdiction, or that such
lands become assets in his hands fer the
purposes of administration. Discussing
the power of administrators the SUI
preuie Court of Iowa uses the following
language: The Administrator appointed
in this State derives his powers from the
statutes OF this State. He succeeds to
none Of the powers or rights Of the Gem
sylvauia Administrator. His app=in;-
ment empowers hin to collect such as
sets of tie estate as may be found in this
State, and he may make such disposition
OF them as IS directed by the laws OF this
State; a 4 be is not answcrable for his
condact either to the foreign Admins
traitor or to the power from which his
authority is derived. but is independent
of both. There is privity neither i'll law
nor estate between them, and there is no
general principle of law under which it
can be held hat s Judgment against the
one is binding upon the others"
Creswell vs.. Slack, Is Iowa, 1l3.
The Supreme Court of the United
States in johnson VS.. Powers, discussing
the same question, quotes with approval
from the opinion of Mr.. Justice Grier in
Stacey VS.. Thrasher in which he uses
the following languages: The Admins
TRAITOR resolves his authority from the
ordinary or other officer of the govern
ment where the goods OF the intestate
are situate. but coming into such possess
sion by succession to the Interstate and
cncumh"red With the duty to pay his
ucbts, J.. is considered in law as in priv
ity wi him, and therefore bound or
estopped 10y a judgment against him.
\ ct his representation of his interstate is
a qualified one and extends not beyond
the assets of which the ordinary had jur-
isdiction."
Johnson VS.. Powers, 13S [. S. 100.
The following authorities hold to the
same etier;:
l Woerne!'s Law of Admr. Sec. 15S,
8 Am. x eng. Ency. OF Law, 1st Ed. 427,
Taylor Us. Barron, % n. H. 496,
Deery vs.. Cary, ) Wal. SOB,
Braithvaite vs.. Harvey, IS Pac. (Aton.}
80,
State ~. Fulton. 40 $. W. (TennA 297.
If, then, an aeon 10 redeem lands from
a mortgage by setting off and applying
damages in waste committed by the
mortgage in possession, as such, can
only be maintained IN an action to fore
close or redeem, and if the Admins
TRAITOR can Only maintain an action to re-
deem IS TO such lands as are assets in his
hands for the purpose Of administration
or to which he is entitled to the posses.
has any power or right to maintain such
action as to lands which are not as
sets in his hands and the possession o.
which he is not entitled to.
Considering now the right of an AID
ministratOr appointed under the law o.
this State to maintain all action for dam
ages i'll the nature of waste committed
after the death of the intestate by a
mortgagee upon the mortgaged premises
situated in smother State, it is clearly ap
parent that if the rule laid down in tn,
authorities above cited prevails here, nc
such authority, power, or right exists
If such claim for allowance for damages
by waste can be mad only in actions t,
forecloss or redeem under the reason
maintain an action in waste COMMITTEES
Dy u mOrISaSe0 upon the mortgaSet
premises in an Independent action. !
may with show of reason, be claimed
that the rights of a mortgage and
mertgagor with reference to the posses
sion of the mortgaged premises, hav
been changed by our statute, which de
clares that a mortgage of rea! propert,
shall not be deemed acenveyance what
ever its terms, so as to enable the ewne
of a mortgage to recover the possession
of the real property without foreclosur
and sale.
Gen. Stats. Sec. 1884.
The mortgage, under the above pre-
vision, not having the right to recove
the possession of the mortgaged prem
ises before foreclosure and sale. has n
right to the possession, therefore hi
entry upon the mortgaged premises an
cutting the timber thereon was withou
authority of lava trespass, for whic
he should be held liable in damages t
the proper parties in a court Of con