
    Nathaniel Shaw & Others versus Benjamin Loud.
    Where the administratrix of a surety was sued for the debt, more than four years after taking administration, and, instead of pleading the statute of limitations, submitted all demands to referees, who awarded that she should pay the debt; the principal was held liable to the heirs of the surety, upon a mortgage made to them, conditioned to save them harmless from such debt.
    A grant “ to the heirs at law of a deceased person ” is good ; for the grantees may be ascertained by extrinsic evidence.
    In this action, which was brought upon a mortgage deed for the recovery of certain lands in Weymouth, the parties agreed to certain facts, upon which the Court were to render judgment, to the following effect. .
    The demandants are the heirs at law of one John Tirrell, deceased, who, in his lifetime, signed two promissory notes, jointly with the said Loud, and as his surety, payable to one Nathaniel Bailey. After the death of Tirrell, administration of his estate was commit ted to his widow, who gave the regular public notice of her said ap pointment, and of her acceptance of the trust. No de- * mand was made upon * the said administratrix, on the part [*448 ] of said Bailey, for payment of the said notes, until after the expiration of four years from the granting of said administration ; but after that period a suit was brought against her upon the notes, to which she pleaded the statute of limitations ; but afterwards, and pending the said action, entered into an agreement with the executor of said Bailey's last will, before a justice of the peace, pursuant to the statute of 1786, c. 21, submitting all demands to the award of certain referees, who awarded that she should pay to. the said executor a sum of money, which she accordingly paid before the commencement of this action.
    After the death of the said John Tirrell, the said Loud made a bond, payable “ to the heirs at law of the said Tirrell," conditioned that he would pay the said promissory notes, “ so that the estate of the said John Tirrell, or his heirs at law aforesaid, should not be injured, nor liable or exposed to be injured,” &c. On the same day, and as collateral with the bond, he made a deed, purporting to convey the demanded premises “ to the heirs at law of the said John Tirrell," with a condition similar to that of the bond.
    The demandants have not been damnified by reason of said notes, unless by the said award, nor are they liable to be damnified, unless through the said administratrix. A nonsuit or default was to be entered, as the opinion of the Court should be upon the facts stated.
    
      Whiting, for the demandants.
    
      Whitman, for the tenant.
   Parker, C. J.,

delivered me opinion of the Court. There is no legal or equitable defence to this action. A deed made to the hern at law of a deceased person is good, because the persons who are to take can be ascertained by extrinsic testimony.

As to the merits of the demand, of what consequence is it to Loud that the administratrix of Tirrell might have avoided payment, if she had chosen to stand upon her legal * rights, in- [*449] stead of submitting the demand to referees ? He remained liable, and a suit might have been maintained against him ; for the statute of limitations would not have availed him, if it would have furnished a sufficient defence to the administratrix. The estate of Tirrell has, therefore, paid money to the use of Loud, which he is bound in conscience to repay ; so that an action for money paid, &c., could be maintained.

But there was no necessity for this. For the non-payment of the notes by Loud, at the time stipulated in the condition of his deed, was a breach of that condition ; as it exposed the estate of Tirrell to suit and trouble. So that, at law, the demandants are entitled to recover possession, unless, within the equitable provision of our statutes respecting mortgages, the sum ascertained to be due in chancery shall be paid within two months. That sum is the amount paid out of the estate of Tirrell for the use of Loud, with interest from the time of payment. Let the tenant be called.

Defendant defaulted. 
      
      
        Shep. Touch. Ch. 12, p. 246. — Vide Hall vs. Leonard et al., 1 Pick. 27.
     
      
       The heirs were not liable for the demand. Bean vs. Farnam et al., 6 Pick. 269 Scott vs. Hancock et al., 13 Mass. Rep. 162.— Emerson vs. Thomson et al., 16 Mass. Rep 429. — Thomson vs. Brown et al., 16 Mass. Rep. 172.— Wellman vs. Lawrence, 15 Mass. Rep. 320. —Ex parte Allen, 15 Mass. Rep. 58.
     
      
       The damage arising merely from the non-payment of the note, and exposing the estate to suit and trouble, was only nominal, if the demand upon the estate was not made until it was barred by the statute.
     