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Morse et al. v. Clayton. heir. 2 Cruise's Dig. 100, note 159. Neither the heirs, therefore, nor their guardians, had power to enforce this security, and the first administrator having failed, an administrator de bonis non was the only person vested with authority to do so. The unsuccessful proceeding at law on the notes, neither merged this debt in the judgment, nor interfered with the separate and independent equitable remedy on the mortgage. The notes and mortgage are but evidences of the indebtedness. The debt itself remains unadministered, and vests in the administrator de bonis non, and it is immaterial in whose hands they may happen to be. Kelscy v. Smith, 1 How. (Miss.) Rep. 85.

The credits in the hands of an administrator are not considered as administered, until he has done some act to alter or change them. Even the recovery of a judgment is not an administration, for the administrator de bonis non may have a scire facias on the judgment, and sometimes a new action for the same debt. Toller on Executors, 448, 449; 4 Mass. 612, 613.

2. On the subject of interest, the intention and contract of the parties constitute the rule of law. The notes on this subject are merely silent, but by the mortgage, the instrument on which this suit is founded, Morse & Baldwin expressly contract to pay interest from the date thereof.

3. The affidavit of the subscribing witness contains all the material requirements of the law, with a slight variation from the form there given. One subscribing witness alone would have been sufficient. 9 S. & M. 336 – 338, and it would not affect his affidavit if he had entirely omitted to mention the other subscribing witness.

4. The law prescribes no limited time within which the lien of a registered mortgage shall be enforced. Even the writings obligatory would not be barred. The statute, H. & H. 569, allows actions on sealed instruments within sixteen years. Equitas sequitur legem, and we would have at least that length of time on the mortgage. From the time when the money was due in 1838, until the filing of the bill in 1846, was less than eight years. Vide 2 Harrison's Dig. 3901.

Mortgagees by fraudulent forfeitures of their leases for non-pay

Morse et al. v. Clayton.

ment of rents, and the taking of new leases to themselves, stand in no better condition than if they relied solely on their rights as assignees under mortgages. The premises are holden by the trustees of the Franklin Academy in trust for educational purposes. They grant leases for ninety-nine years, renewable forever, on payment of annual rents, and with a condition of forfeiture for non-payment. All the plaintiffs in error derived their titles originally from Morse & Baldwin, the mortgagors. Outley and others, while thus being tenants in possession, and purchasers from Morse & Baldwin, for the purpose of defeating the mortgage, neglected to pay the annual rents, permitted the premises to be forfeited, took new leases from the trustees, and now have the effrontery to set up these new leases in bar of the mortgage.

5. The mortgagors and their assignees, being tenants in possession of the premises, were bound, both by law and their contract of lease, to pay the rents. Besides, it was their duty to the mortgagee to pay the rents to the trustees, and prevent a forfeiture. They must protect the rights of the mortgagee. They can neither do nor omit any act tending to diminish, destroy, or take away, the security of the mortgagee. 2 Cruise's Dig. 99. The attempt by the new leases to defeat the lien is a fraud that a court of conscience will not tolerate.

Furthermore, the plaintiffs in error, as assignees of the mortgagors and tenants in possession before foreclosure, were the true owners of the legal estate, subject only to the mortgage charge, and as the legal owners, they were bound, independently of their duties under the mortgage, to pay the rents. They were indeed the only persons to whom the trustees could look for payment. 2 Cruise's Dig. 160, note 159; 2 Cow. 195, 230, 231; 2 Paige, 68, 556, 593; 5 Wend. 603; 1 McCord, Ch. R. 395, 397; 7 Mass. 138, 139; 4 Johns. 144, note 1; 6 Ib. 294, 295.

6. At common law, where there is a clause of re-entry and forfeiture in a deed of lease, on the non-payment of rent, to perfect the forfeiture, the landlord must demand the rent of the lessee, on the premises, at sundown, of the day on which the rent falls due. None of these prerequisites were complied with.

Morse et al. v. Clayton. An entry by the landlord without demand of rent is tortious, because a power of re-entry is in derogation of the grant, and it will be presumed that the tenant was on the premises ready to pay the rent and prevent a forfeiture of his estate, unless the contrary appear by a demand and refusal. 2 Cruise, Dig. 329. In this case the rent was payable on the premises, there being no other place specified in the deed. The defendant in error has never entered into any contract which implies a waiver of these prerequisites, nor has he accepted of the new leases by a surrender of the old ones.

7. It would be the official duty of the commissioner to pay over to appellants any surplus without a formal order; but if it should be deemed important, the decree can be amended to that effect, and if it be not competent to sell the premises for cash, it may be on such time as this court thinks equitable and just.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

John Oliver, in his lifetime, sold an unexpired term in certain lots in the town of Columbus to Morse & Baldwin for $ 1000. He took there writings obligatory, and a mortgage on the premises to secure the payment. After Oliver's death, Bibb took out letters of administration, and the writings obligatory and mortgage came into his possession, and he received payment of the note first due. He made a final settlement in 1837, and was discharged from his administration ; two notes, however, remained unpaid. Bibb was then appointed guardian of the minor children of Oliver, and still held the two notes and the mortgage, and in that capacity received payment of one of the notes. In 1838, Bibb ceased to be guardian, and the complainant, George R. Clayton and one Holderness, were appointed, and received from Bibb the writing obligatory due in 1838, and the mortgage. They, it seems, obtained judgment on the writing obligatory in 1840, having sued in the name of Oliver for their use, but failed to make the money by execution. In 1844, Clayton administered on the estate of Oliver, and in that capacity files this bill to foreclose the mortgage.

The foregoing statement shows the ground of the first objec

Morse et al. v. Clayton.

tion, which is, that Clayton cannot maintain this suit as administrator de bonis non, because Bibb, the first administrator, had possession of the writing obligatory and mortgage, and fully administered in this respect; and that Clayton and Holderness received the note and mortgage as the property of their wards, and having obtained judgment, cannot now be permitted to resort to the mortgage.

It is true that an administrator de bonis non has a right only to such goods, chattels, and credits, as may remain unadministered, but had there been such an administration, in regard to this debt, as to preclude the right of the administrator de bonis non? It is certainly very clear, that there was no such administration in reference to this debt as to change its character from an indebtedness to the estate. The possession of the evidences of a debt is not an administration. The possession of the guardians did not change the character of the indebtedness; the legal right never was in them. It is immaterial who may have the possession of a note given to a deceased person ; as long as it remains uncollected, or undisposed of by legal means, it belongs to the estate, and the administrator de bonis non may maintain suit upon it. Kelsey v. Smith, 1 How. 68. We do not very well understand how Clayton, as guardian, could have maintained a suit at law on this writing obligatory, but that is not material; it does not preclude him as administrator from proceeding on the mortgage. As this writing obligatory was payable to the deceased, its payment could only be enforced by an administrator.

The next objection is, that the note does not bear interest on its face, but the account includes interest from its date, and the decree is so made, because, by the mortgage, it is provided that it should bear interest from date. The mortgage, though but a collateral security, is the foundation on which the jurisdiction of the court of chancery rests. In this proceeding the notes are immaterial; the relief is to be given on the face of the mortgage. If it describe the debt intended to be secured by it, that is sufficient, even though no note be given. It is taken to secure the payment of the debt; the note is but evidence of the debt. Morse et al. v. Clayton. Besides, we see no reason why the parties should not have provided by the mortgage for interest on the debt, although the writing obligatory did not call for interest.

In the next place it is said the acknowledgment, on which the mortgage was admitted to record, was insufficient, and the mortgage cannot be set up against the present holders of the lots, who are all bona fide purchasers. The acknowledgment is not in the precise words prescribed by the statute, but the general rule that a prescribed form must be followed does not apply, because the statute only requires that the certificate of acknowledgment or of proof shall be in the form, or to the effect therein prescribed. This certificate of proof, by a subscribing witness, is in effect sufficient. The certificate does not state that the witness subscribed his name in the presence of the grantors, or that he saw the other subscribing witness sign the same in their presence. But it does state that the deed was signed, sealed, and delivered, in his presence, and also in the presence of R. Evans, the other subscribing witness thereto. It is thus substantially stated, that the two witnesses subscribed in the presence of the grantors and in the presence of each other. To be a witness to an instrument is to attest to its execution. One who does not attest is not a witness within the meaning of the word, as it is used in the statute. It is said that these certificates should be liberally construed; that it is neither the duty nor the inclination of courts, where substance is found, to jeopardize titles in any way depending upon them, by severe criticisms upon their language. 3 Phil. Ev., Cow. & Hill's Notes, 1247, 1248.

In the next place, it is said the mortgage lien was lost by the great delay to enforce it. The debt was only due in 1838, and this bill was filed in 1846. Even the remedy at law on the writing obligatory was not barred, and surely the mortgage ought to continue in force as long as the debt it was taken to

There is no statute which prescribes its duration as a lien, and we cannot say that a delay of eight years would destroy the lien.

The next question raises the validity of certain leases made VOL. XIII.




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