Vance v. Isbel. a verdict and judgment thereon, without disposing of a demurrer to others, is not error to the prejudice of the party whose plea is demurred to, cited and overruled. It is error to submit a cause to the jury, upon issue joined, without disposing of a demurrer to one of the pleas, for which a verdict and judgment on the issue will be set aside, and the cause remanded. ON appeal from the circuit court of Panola county; Hon. Francis M. Rogers, judge. The facts are stated in the opinion. H. W. Walter, for appellant, On the point on which the case turned, cited Marlow v. Hamer, 6 How. 189; Ib. 500; 1 S. & M. 340; 6 Ib. 47; 7 Ib. 39; 8 Ib. 711; and insisted that the last case was in conflict with, and should yield to the former. Watson and Craft, for defendant in error, relied on Proskey v. West, 8 S. & M. 711, as settling this point. Mr. Justice SMITH delivered the opinion of the court. This was an action for a malicious prosecution, tried in the circuit court of Panola county. The defendant pleaded, first, the general issue; second, a plea of the statute of limitations; and third, a special plea in bar to the second count of the declaration. Issue was joined on the first, the second was waived, and to the third the plaintiff demurred generally. The cause was submitted to the jury on the issue taken on the first plea, the demurrer to the third not having been disposed of. This is insisted on as error. That it was irregular and erroneous seems to be the settled doctrine of this court. See Walker v. Walker, 6 How. 500; Marlow v. Hamer, Ib. 189; Rowly & al. v. Cummings & Spyker, 1 S. & M. 345; Harper v. Bondurant, 7 Ib. 397. It is true, that in a later case, that of Proskey v. West, 8 S. & M. 711, a different rule is laid down. But there was no reason given for a departure from what was the settled practice. The decision in that case ought not, therefore, to be considered as overruling the previous adjudications on this point. Morse et al. v. Clayton. For this error, the judgment must be reversed, and the cause remanded for further proceedings. AGER T. MORSE ET AL. vs. GEORGE R. CLAYTON, Administrator de bonis non of John Oliver, deceased. The mere fact that a former administrator had in his possession a note of a third party, due to his intestate, is not an administration of such note; nor will his ceasing to be administrator, and delivering the note over to the guardian of the children of his intestate, make the note any the less assets, which may be administered by an administrator de bonis non. Where a note secured by mortgage is payable to a deceased person, no one but his administrator can enforce the collection of the note by the foreclosure of the mortgage; nor will it be any obstacle to the administrator's right to foreclose, that by some means a judgment has been had at law on the note against the maker in favor of the guardian of the heirs of the payee. Where a note secured by mortgage does not purport to bear interest on its face from date, while the mortgage to secure its payment recites that it is to bear interest from date, the mortgagee will be entitled to the interest stipulated for in the mortgage. An acknowledgment to admit a deed to record need not be in the very words, but only to the effect, of the form prescribed by the statute. Therefore, where a subscribing witness stated that the deed was signed, sealed, and delivered in his presence, and in the presence of the other subscribing witness, it is a sufficient compliance with the law, which provides that the witness shall swear that he saw the grantor sign, seal, and deliver the deed to the grantee; that he subscribed his name as a witness to it in the presence of the grantor; and that he saw the other subscribing witness (naming him) sign the same in the presence of the grantor, and in the presence of each other, on the day and year therein named." There is no statute in this state which prescribes the duration of a mortgage lien; it seems that its lien will at least continue in force as long as the debt it is intended to secure is binding. Where a defence to a bill of foreclosure is predicated on the ground that the mortgagor had but a leasehold interest which he forfeited by non-payment of his rent, and so his lessor had re-leased the premises to those in possession, the original lease to the mortgagor must be produced to show the conditions upon which he held, otherwise the court cannot judge whether he ever held on condition. Morse et al. v. Clayton. The usual mode of taking advantage of a breach of condition for the payment of rent, is by an action of ejectment after actual demand of the rent in arrear. An ordinary decree of foreclosure is erroneous which decrees a sale for cash, unless it be so rendered at the desire of the parties. Where there is a decree of sale of several distinct pieces of property to pay one debt, the decree should order a sale of only so much as may be necessary to pay what is due. On appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor. George R. Clayton, administrator de bonis non of John Oliver, deceased, on the 20th of April, 1846, filed his bill to foreclose a mortgage executed by Ager T. Morse and Daniel Baldwin, to secure the payment of three writings obligatory executed by them; there were nine other defendants who were alleged to be interested in the property mortgaged, and to hold subject to the mortgage. The facts are sufficiently stated in the opinion of the court. The vice-chancellor decreed a foreclosure of the mortgage, and the defendants appealed. Harris and Harrison, for appellants, 1. The authority of an administrator de bonis non, embraces only such of the personalty as remains unadministered, in specie, unaltered and unconverted by his predecessor. 2 Porter, 550; 5 Rand. 51; 2 Ib. 294; 9 Leigh, 580; 1 Rice's Eq. R. 40; 7 Gill & Johns. 13; 1 How. 68; Ib. 87, 146, 154; 5 S. & M. 130; 6 Ib. 323. Upon the guardian's executing bond, the distributive share of the ward is delivered to him. How. & Hutch. Dig. 337. ' The guardian can maintain an action in his own name for the use of the ward. 5 Steward & Porter, 114; 5 Porter, 508; 1 Alabama Rep. (N. S.) 197. The cases even go so far as to determine, in a suit against the security on the administration bond, that where an administrator is also appointed guardian, and more than two years have elapsed from the grant of administration, after the expiration of two years, it was his duty to retain as guardian, and the law would presume he did so retain. Carrol v. Bosley, 6 Yer. Morse et al. v. Clayton. 220; 6 Dana, 68; Ib. 5; 1 Hill's Ch. R. 285; 2 Bailey's R. 60; Chitton's Probate Court Law, 482. In this case Bibb received and accounted to the court as guardian, and Clayton and Holdeness received and reduced the claim to judgment, as guardians jointly, and now Clayton disregards the whole proceedings, abandons the judgment, and proceeds, as administrator de bonis non, solitary and alone, upon the debt merged in the judgment; and the court sustains the proceedings. 2. It was error to allow interest from the date of the bonds. The mortgage is but a collateral security, and the indebtedness is independent of the security. The bond or note given is the evidence of the debt and the foundation of the remedy, the mortgage is merely collateral to it. The writings obligatory themselves are higher evidence than the deed attempting to describe them, and the more so, as the deed refers to the writings obligatory, as the source from whence the description is obtained. Stark v. Mercer's Administrators, 3 How. 381; 2 Cow. 195. 3. The parties in possession claim to be bonâ fide purchasers, without notice. The acknowledgment upon which the deed was attempted to be recorded was insufficient. The essential requirements of a probate are, under the statute, that the witness should swear to the subscription of all the parties, setting out their names, that the witnesses subscribed in the presence of the maker of the deed, and in the presence of each other, and on the day and year mentioned in the deed. How. & Hutch. Dig. 344, § 7, p. 345, 12; Fipps v. McGehee et al., 5 Porter, 413, 434; 12 Alabama Rep. 22; 3 Cow. & Hill's Notes to Phillips, 1243, 1244; 13 Ala. Rep. 375. The acknowledgment in this case does not show that the witness subscribed his name as a witness in the presence of the makers of the deed, or that he saw Evans sign, either in his presence or of that of the makers of the deed, or that he or Evans subscribed as witnesses on the day and year mentioned in the deed. 4. The mortgage has lost its lien against subsequent purchasers by virtue of the unreasonable delay. Where a plaintiff Morse et al. v. Clayton. neglected to enforce his judgment lien for a period of four years, it was held to be fraudulent against bonâ fide purchasers of the judgment debtor. Speight v. Adams, 1 Freeman's Ch. R. 318; Robinson, et al. v. Green, 6 How. 228. Such delay is fraudulent. See Divver v. McLaughlin, 2 Wend. 599. 5. Several defendants leased from the original lessors, but it is contended by appellee, that the leases conveyed no title, because the trustees of the Franklin Academy did not enter and declare a forfeiture, in due form of law, on the premises, on the day, &c. The agreed state of facts expressly shows, that during the years 1838 and 1839, Morse & Baldwin bargained, sold, transferred, and assigned the several lots in question by deeds, duly recorded, to different individuals, who again sold, &c., and that the parties now in possession went in, originally, under some one claiming under, and through, Morse & Baldwin. The parties in possession were claiming the whole unexpired term, and by the terms of lease, the contracts were assignable. The property was leased to Oliver, and, as the bill shows, he conveyed all his title and interest to Morse & Baldwin, and they executed a mortgage upon the premises. No entry, or demand, or forfeiture, is necessary where the parties, by mutual agreement, enter into a contract that necessarily waives them all. The acceptance of a new lease is a surrender in law of the old one. 6 Wend. 569; 12 Johns. R. 357; Bacon's Ab., Title, Leases. The estate, by yielding it up, is drowned, by mutual agreement, and the due time of entry, demand, &c., has no application. 6. In a decree for selling mortgaged estate, provivsion ought to be made for the payment of the surplus to the mortgagor. Downing v. Palmateer, 1 Monroe, 66. 7. The commissioner is ordered to sell for cash. the face of the statute. Hutch. Code, 770, § 4. no request of the defendants for such a sale. W. P. and J. F. Jack, for appellee. This is in There was 1. A mortgage is but a chose in action, a mere chattel interest, which descends to the personal representative, and not to the |