
    Cutter versus Davenport.
    An administrator cannot, by virtue of letters granted in another State, assign a mortgage of land situated in this State.
    This case was determined at October term 1821.
    The plaintiff demanded a certain piece of land, situated in Petersham, in this county, as assignee of a mortgage, made in the year 1810, by the defendant to one Comstock, of Vermont. The declaration set forth the mortgage deed in the usual form ; from which it appeared, that the mortgage was of the fee-simple. It was then averred, that Comstock died seised of the premises in fee and in mortgage ; and that one A. Cleaveland, his administratrix, assigned and conveyed the same to the plaintiff, to hold in like manner, by force whereof he became seised, and that the defendant has disseised him. The defend ant pleaded in bar, that A. Cleaveland never was administra trix of the goods, &c. of Comstock by virtue of letters of administration granted by any judge or court of probate within . this Commonwealth: to which plea there was a general demurer, and joinder.
    
      Weed, for the demandant.
    The question in this case is, whether the administratrix, being appointed in another State, had authority to assign a mortgage of land situated in this State. This mortgage was bona notabilia in the State where the intestate died. Daniel v. Luker, Dyer, 305; Stevens v. Gaylord, 11 Mass. Rep. 256. It was executed here, and relates to land within this State ; it is therefore to be governed by our laws. Hull v. Blake, 13 Mass. Rep. 156. It could lose none of its legal qualities and character by passing from the deceased into the hands of his administratrix, who represents the personal estate of the intestate, and has a right to transfer any part of it. Selw. N. P. 679, 680. By St. 1788, c. 51, § 1, the land mortgaged to an intestate, as well as the debt for which it is pledged, is expressly made assets in the hands of the administrator, and he is empowered to bring an action to recover possession of the mortgaged premises, counting on the seisin and possession of the intestate. The effects of Corn-stock are to be distributed according to the laws of Vermont, where he last dwelt. Stevens v. Gaylord. The money secured by the mortgage has already gone into the hands of the administratrix, within the jurisdiction of the probate court in that State, and the Court here will not interfere to withdraw it from the control of that court, which must ultimately decree a distribution.
    
      L. Bigelow, for the tenant.
    It is clear, that the administratrix herself could not maintain an action upon the mortgage in this Commonwealth, by virtue of letters of administration granted in the State of Vermont. Fenwick v. Sears’s Administrators, 1 Cranch, 259; Dixon’s Executors v. Ramsay’s Executors, 3 Cranch, 319; Lewis v. M’Farland, 9 Cranch, 159; Langdon v. Potter, 11 Mass. Rep. 313; Goodwin v. Jones, 3 Mass. Rep. 514; Borden v. Borden, 5 Mass. Rep. 67; and Stevens v. Gaylord. And it should seem to follow, that she could not assign it, because she could not communicote an authority or right which she did not possess. The St. 1788, c. 51, § 1, applies to such executors and administrators onty> as derive their authority from our laws. From the prim ciples laid down in Goodwin v. Jones and Stevens v. Gaylord, it results, that a foreign administrator cannot intermeddle with effects of the intestate within this Commonwealth ; and this is in conformity with the common law of England, so far as there is any analogy between their form of government and ours. Barstow v. Ridley, Salk. 39, and authorities there cited ; Dyer, 305, and authorities there cited.
    The question then is, whether the mortgage upon which tips action is brought, or the lands mortgaged, be or be not goods, effects or credits within this State, and subject to an administra tian to be granted here. An arbitrary distinction has prevailed in England, between different kinds of debts, as to the place in which they make bona notabilia. 1 Saund. 274 a, note 3, and cases there cited ; Com. Dig. Administrator, B. 4. But the nature of our laws and government seems to require, that all debts should be bona notabilia where the debtor lives, or has property; because, as process cannot extend from one State to another, and an administrator cannot, by virtue of letters granted in one State, maintain an action in another, the remedy must necessarily follow the person or property of the debtor. A mortgage, then, must be bona notabilia in the State where the land lies ; for an action upon it being in rem, must necessarily be local. 3 Mass. Rep. 519. If a mortgage in fee is to be considered as real estate, it would by our laws be liable to be administered where the land lies, and nowhere else ; for lands in another State are not assets in this Commonwealth ; nor could lands here, previously to the statute of 1817, c. 182, be assets in another State. 9 Mass. Rep. 395 ; 1 Mass. Rep. 35 ; 3 Mass. Rep. 258, 514 ; 4 Mass. Rep. 354, 654 ; 5 Mass. Rep. 240. And even by the common law of England, if a mortgage in fee should not be considered as real estate, it would probably be analogous to a lease for years, or to an annuity out of a parsonage, which are bona notabilia where the land or parsonage lies. Dal. 77 ; Dyer, 305 a, in notis. But if the mortgage should be considered as accessory to, and partaking of the nature of the debt, it ought to appear whether the debt is due by specialty, or on simple contract; for a simple contract debt is by the common law bona notabilia where the debtor lives. If the mortgage is bona notabilia where the land lies, or where the debtor or mortgager lives, it cannot, according to the authority in Dyer, be discharged by a foreign administrator. But if it is to be considered as bona notabilia where the mortgage was at the time of the decease of the mortgagee, which may be supposed to have been in Vermont, then the demandant ought to show, that, by the laws of Vermont, the administratrix had a right to assign the mortgage in the manner she did, and that the assignee might have a remedy upon it in his own name. It would not render valid the acts of the administratrix in that jurisdiction, which were not conformable to its laws, to show that they were done in reference to the laws of this State, and with a view to their operation here, because she has never been authorized by our laws to do these acts. She must justify herself, either by the laws of Vermont, or those of this State. Now it does not appear, and the Court cannot presume, that she had authority by the laws of Vermont to assign the mortgage ; she therefore is not justified by the laws of Vermont. Neither is she by our laws, because she is not accountable here for her acts done in Vermont, nor is she accountable there according to the laws of this Commonwealth. Further, if she might assign this mortgage, because by the laws of Vermont she would have authority to assign a mortgage of land situated in that State, she might, on the same principle, convey any real or other estate of the intestate, situated in this Commonwealth. The reason why she cannot sell any property here is, because she cannot be compelled to account for the proceeds in any court of probate in the Commonwealth. If there are creditors here, they would be pre ferred to those who live out of this jurisdiction. Dawes v Boylston, 9 Mass. Rep. 337; Stevens v. Gaylord, 11 Mass. Rep. 269.
    Although a mortgage is, by our laws, for certain purposes, personal estate in the hands of an administrator, yet an assignment of it must necessarily be an alienation of the land, subject however to the conditions of the mortgage ; Gould v. Newman, 6 Mass. Rep. 241; and if the assignment in the case at bar is valid, the assignee derives a title to real estate situate(l in this Commonwealth from a person acting under an authority derived from a foreign jurisdiction, and who could have maintained no action to recover possession of the estate.
    Let it be supposed, that the mortgage was given to secure the payment of a bond, or a note not negotiable. If an assignment like this is good, the assignee might sue for the incident, when he could not for the principal; for he could not maintain an action upon the bond or note in his own name, as he might upon the mortgage, nor in the name of the foreign administrator.
    
      Weed, in reply,
    admitted that a foreign administrator cannot maintain an action in our courts, but he said this case did not fall within that principle. The administratrix had already received the whole consideration for the mortgage, which came to her hands within the jurisdiction of the foreign court, where she is bound to account.
   Per Curiam.

A mortgage, though of lands in fee, is to many purposes considered as a chattel interest; but this is not strictly true in all instances. Upon the death of such a mortgagee, the land descends by the common law to the heir, although the executor or administrator is entitled to the money. The St. 1788, c. 51, was made to remedy this inconvenience. By the first section of that statute, it is enacted, that when the mortgagee dies before entry for breach of the condition, the land, as well as the debt, shall be assets in the hands of the executors or administrators, as personal estate ; that they may dispose of it as if .it had been personal estate pledged; and that they may maintain actions to recover the seisin and possession of land so mortgaged. This statute refers only to executors and administrators appointed in this State ; and its operations must be confined to them. Otherwise, the administratrix of the mortgagee might, by the express words of the statute, have maintained an action in her own name on this mortgage. Yet it has been decided, in the cases cited in the argument, (Goodwin v. Jones, 3 Mass. Rep. 514; Borden v. Borden, 5 Mass. Rep. 67,) with reference to actions under this same statute, as well as to other actions, that they cannot be maintained by executors or administrators appointed in any other State or country.

The assignment of a mortgage is, in one view, merely an assignment of the debt, with the collateral security for the payment of it. But, after a foreclosure, the land becomes the principal thing, and the debt is extinguished to the extent of the value of the land. It must therefore be anticipated, in the making and in the assignment of a mortgage, that the land may eventually be held as an absolute estate by virtue of those conveyances ; and they must be such as would be sufficient to convey the land, if the conveyance were absolute and without condition. It is a settled principle, that, “the title to, and the disposition of, real estate must be exclusively regulated by the law of the place in which it is situated.” By our law, an administrator appointed here cannot convey the real estate of the deceased, unless in certain cases and in certain modes prescribed by our statutes. Those statutes, as before observed, do not extend to foreign administrators ; and of course the conveyance by the foreign administrator to the plaintiff in this case is insufficient.

It may be added, that although this objection seems to apply only to the title which the assignee may have or claim after a foreclosure, yet the question may, and often does arise, in the action to foreclose the mortgage. Every such action partakes of two distinct characters. If the defendant has no title but that which the mortgager had at the making of the mortgage, the action is substantially nothing more than a bill in equity for a foreclosure. But if the defendant holds by any other title, adverse to that of the mortgager and supposed to be better than his, the action then becomes in effect a common writ of entry. The demandant, in that case, must be able to maintain his right to the land in the same manner as if the original conveyance, under which he claims, had been absolute. As it cannot be foreseen on which of these grounds the defence will be placed, the demandant’s title, whether disclosed m the declaration, or in evidence on a trial upon the general issue, must be such as would prima facie entitle him to a verdict; and this must be exhibited, before the tenant can be required to disclose his title. In the present case, the demandant’s title, as it appears on the pleadings, is materially defective ; and this is a sufficient bar to the action, without inquiring into the title of the tenant.

The plea in bar adjudged good. 
      
       See Doolittle v. Lewis, 7 Johns. Ch. R. 45; Trecothick v. Austin, 4 Mason, 16. An administrator in Virginia need not take out ancillary administration here, in order to seize a slave who has escaped into this State. Commonwealth v. Griffith, 2 Pick. 11 In Maine it has been decided, that an executor appointed under the laws of Massachusetts, cannot indorse a promissory note payable to his testator by a citizen of Maine, so as to give the indorsee a right of action in his own name in Maine. Stearns v. Burnham, 5 Greenl. 261. Acc Thompson v. Wilson, 2 N. Hamp. R. 901. Contr Harper v. Butler, 2 Peters's Supr. Ct. R. 239.
     