
    [Pittsburg,
    September 28, 1827.]
    BELTZHOOVER against DARRAGH and others.
    APPEAL.
    Two administrators sold land of the intestate to B., under an order of the Orphans’ Court, for payments of dehts, &c., and took a mortgage in their names-as administrators for the unpaid portion of the purchase money. B. afterwards sold about one third of the land to Y,, who made improvements. He then sold the residue of the land to (?., and took from him tyro bonds, ' one to the administrators for the purchase money due them, and the other to himself for a further sum, with a mortgage on the portion thus last sold to secure these bonds. B. afterwards assigned the bond in favour of himself to P. G. declining to pay interest to the administrator on account of the first mortgage, B. prevailed on one of the administrators to enter satisfaction of the mortgage to the administrators on the margin of the record, (reciting an order to that effect by the Orphans’ Court, which had not been made,) and at the same time, the guardian of the minor children of the intestate acknowledged on the margin of the record the receipt of the last mortgage as sufficient security for the debt.from B. After these transactions P. assigned his bond to another: the two administrators received some interest of G. and brought suit against him on the mortgage for other interest due.> Suit was, however, afterwards brought on the first mortgage in the name of the administrators, for the use of the minor children. The court were equally divided on the question, whether the plaintiffs were entitled to recover, and the judgment bf the court below in favour of the plaintiff's was affirmed.
    
      Scire facias on mortgage brought by John Darragh, administrator, and John Sumrall, and Elizabeth his wife, formerly Elizabeth Davis, administratrix of David Davis, deceased, for the use of the heirs of David Davis, plaintiffs below, and defendants in error, against Daniel Beltzhoover, with notice to George Poe, jr., Jamies Young, and Chambers, tenants in possession, and George Poe, Alexander Johnston, jr., and William Hays, trustees of John L. Glaser, defendants below, and plaintiffs in error.
    
      
      David Davis died intestate in the month of August, 1807, leaving a widow and rhinor children, seised in fee' of a tract of land, lying about three miles from Pittsburg, containing about one hundred and eighty acres. The value of this property was not very considerable at the time of his decease, but during the rage for speculation which existed in Pittsburg from the commencement to the close of the late war, and for a few subsequent years, the real estate of the intestate appreciated to a great amount.
    
      John Darragh, Esq., and Elizabeth Davis, having administered to the effects of the deceased, at April Term, 1813, applied to the Orphans’ Court for an order to sell the real estate for the payment of debts and education of the orphan children of the deceased. The usual order was obtained from the court, and the administrators having reported at the subsequent August Term that they had made sale to Daniel Beltzhoover, for the sum of eleven thousand and eighty-nine dollars and twenty-nine cents, the court upon motion confirmed the sale, and ordered the administrators to execute a deed to the purchaser. The deed from the administrators to Beltzhoover, was dated the 3lst of January, 1815, and recorded on the 13th of September of the same year. On the 17th of July, 1S15, Beltzhoover executed a mortgage of the property to the administrators for the purpose of securing the sum of eight thousand and eighty-nine dollars and twenty-nine cents, the balance of the purchase money then unpaid. This mortgage and the deed to Beltzhoover were recorded on the same day. On the 17th day of December, .1817, Beltzhoover and wife conveyed one hundred and twenty-six acres of the property purchased from Davis’s administrators to John Glaser, who on the same day executed his mortgage of the property conveyed by Beltzhoover to secure the payment of two bonds given by the said Glaser, one for eight thousand and eighty-nine dollars and twenty-nine cents, with interest, in favour of J. Darragh and E. Davis’s administrators, &c., the other for four thousand one hundred and one dollars and fifty-four cents in favour of Beltzhoover. This deed and mortgage were recorded on the 13th of April, 1818.
    At the August Sessions of the Orphans’ Court, 1813, William ■Hays had been appointed .guardian of the children of David Davis, then minors, under the age of fourteen. These administrators settled their accounts at the November Term of the Orphans’ Court, held the 8th of November, 1813; at that time there were one thousand four hundred dollars due them which was liquidated from the cash payment of three thousand dollars made by Beltzhoover shortly after the purchase. The interest on the balance of the purchase money due by Beltzhoover, was paid punctually to the administrators up to the period of the sale to Glaser.
    
    On the 23d of December, 1817, Beltzhoover conveyed to James Young, in consideration of four thousand seven hundred and eighty-six dollars, sixty-three acres and one rood, being a part of the land contained in the first mortgage, but omitted in the second: and on the 20th of June, 1818, he assigned for a valuable consideration to James Poe, jr., and his assigns, the bond of Glaser to him for four thousand one hundred and one dollars and fifty-four cents, mentioned in the second mortgage.
    In March, 1819, in consequence of Glaser’s declining to pay the interest until Beltzhoover released the property from the first mortgage, Darragh and Hays were induced after some negotiation to agree to discharge the first mortgage, and to accept the second in lieu thereof. They accordingly went to the recorder’s office, and signed the following entries on the margin of the record of the first mortgage:
    “Ido hereby acknowledge to have received satisfaction in full for the debt and interest due on this mortgage, which was paid by the mortgage of John L. Glaser, dated the 17th of December, 1817, and recorded in book A. page-, in Allegheny county, given me for the same debt, and which I accepted in discharge thereof. This mortgage of Mr. Glaser is now by order of the Orphans’ Court transferred to the case of William Hays, the guardian of the minor children of David Davis, deceased.
    
      John Darragh, Adm.”
    ££ I acknowledge that-the mortgage of John L. Glaser, above named, has been placed in my hands by John Darragh, Esq., and that being guardian as aforesaid, have accepted of the same as sufficient security for the debt due thereon.
    
      William Hays, Guardian.
    Neither Darragh nor Hays knew till some time after of the assignment of the bond by Beltzhoover to Poe: nor did it appear that any suchorder of the Orphans’ Court as that recited in Darragh’s acknowledgment of satisfaction, existed. But they both thought the property security for two or three times the amount of the mortgage.' Before, however, they would agree, they required and obtained from Betzhoover, and three sureties, an indemnity under seal, by which they covenanted to save Darragh and Hays, and the heirs and representatives of David Davis, harmless from any loss that might happen from the entry of satisfaction, and that Glaser’s mortgage should be a sufficient security. In October, 1819, Poe assigned his bond to Mrs. Potts, his mother-in-law. Beltzhoover made considerable improvements after his purchase from the administrators. Young also made improvements on the property he bought of Beltzhoover. There was parol evidence given of these matters, and the defendants endeavoured to show that Mrs. Davis knew of the arrangement, and assented, and that Thomas Davis, one of the children, after he. came of age, received interest from Glaser. It appeared, that in 1821, Glaser was sued by the plaintiffs for the interest on his mortgage, and judgment obtained.
    The president of the court below charged the jury as follows:—
    If Hays and Darragh had authority to enter this satisfaction, but acted under a misrepresentation of facts made to them by Beltzhoover in relation to the security to be substituted,'and you are satisfied that under the mistake produced by such misrepresentation, they made the substitution, such substitution would- not be binding on the heirs of David Davis in an action where no other interests than those of themselves and Beltzhoover were involved, unless they had subsequently assented to it; but if other persons unacquainted with the facts, had become interested in the .property, standing in the position of innocent purchasers, they would be protected whether there had been a subsequent assent on the part of the trustees or heirs, or not. He would be deemed an innocent purchaser, and be protected by the same principles who had taken a conveyance of a portion of the property, or received an assignment of an incumbrance secured by it, after the entry of satisfaction on the first mortgage; or if a purchaser before such ineumbrance had been removed, made valuable improvements, after its removal he would be deemed in equity to have made them upon the faith of such removal, and would be entitled to protection to their value. It is, however, denied that the administrators and guardian had become acquainted with the true state of the business, until long subsequent to the interests accruing to those who claim to be innocent purchasers and incumbrancers.
    I take this to be immaterial, on this ground, that if the trustees had authority, they are responsible to the heirs for the prudent exercise of it, and it comports better with the policy of the law to impose that responsibility upon them which arises from their inattention to a subject which inquiry might have spread fully before them, than to involve those in loss who relied upon the fact, that those who had authority acted prudently.
    “ I take it to be a fixed and unalterable principle, that a power not coupled with an interest, must be strictly pursued. A devise to executors to sell land, not coupled with an interest in the subject, is a naked power which must be executed by all the executors named in the will, and if one of them dies, it.does not survive to the others. If an authority is granted by statute, affecting the property of individuals, it must be strictly pursued: where a power of attorney is special, every thing is void which the attorney does not in strict conformity to his authority. The acts of such persons not in strict conformity with the authority from which their powers are derived, are also void; and all persons claiming to hold, however remote, or however ignorantly, under such defective and void execution of powers, derive no title from them which can-aid or support their claims.”
    " It is plain, that executors or administrators have no interest, legal or beneficial in the personal estate, but are invested only with a legal power over it, just as every trustee has a legal power over his trust property. It is equally clear, that when real estate is converted into personal, by the mode prescribed by the act of assembly, the administrator does not become entitled to any beneficial interest in it; indeed, in relation to the authority which an administrator is allowed to exercise..,over the real estate of the decedent, he is the mere creature of the Orphans’ Court, deriving his powers from that tribunal, guiding his footsteps by its instructions, and seeking its concurrence in all his acts and measures. The Orphans’ Court have authority by the 19th section of the act of March, 1794, to direct a sale of the real property of an intestate, for the purpose of paying debts, educating children, maintaining them, binding them apprentices, and the improvement of the residue of the estate. By the 20th section of the same act, before such order can be made the administrators must exhibit an inventory of the personal property, show the state of the debts, and set forth the deficiency of the .personal estate to accomplish the several objects for which a sale of the real estate is prayed. The court is required to fix the time of sale, direct the notices to be put up, and a return of the proceedings must be made at the subsequent term, for the approbation or rejection of the court, and any balance beyond what may be required for the exigencies set forth in the petition, is subject to the distribution. By the 1st section of the act of April, 1802, the administrator de bonis non is authorized to consummate the title, where the administrator making the sale, dies before executing a conveyance. The 4th section of the act of the 27th of March, 1813, enacts,.that executors and administrators, guardians or trustees may, by leave of the Orphans’ Court, put out minors’ money at interest upon such security as the court shall allow of, and if such security, taken bona fide and without fraud, shall happen to prove insufficient, it shall be the minor’s loss. The 10th section of the act of the 7th of April, 1807, authorizes guardians to make sale of the estate of minors, and provides that they shall give bond to the Orphans’ Court, conditioned for placing the monies arising from such sales at interest on good real, or other securities.”
    “,The first that strikes us, in relation to the authority given to the Orphans’ Court to direct a sale of landed estate, is the very guarded steps that are necessary before that court is enabled to make an order of sale; upon the regularity of these steps it depends, whether the Orphans’ Court itself becomes vested with jurisdiction over the subject matter, and where irregularities are committed in the steps rendered necessary to confer the jurisdiction, the sale is void, and the purchaser under the order of sale is bound to take notice of such irregularities.
    
      “ The next thing to be observed is, the extreme caution which the legislature has exhibited in relation to the surplus remaining in the hands of the administrator, after the objects of the sale have been accomplished, by directing a distribution of such surplus, an act which would have been necessarily derived from the nature of the administrators’ authority. ' A third circumstance is not less important; it relates to the authority given to executors and administrators to put out money of minors at interest; upon such security as the court shall approve of. Upon this section I proceed to remark, that the word ££ may,'> made use of by the legislature, is imperative; it is the duty of the administrator so to apply surplus funds of minors in his possession, and the court have full authority to enforce a compliance with the legislative requisition.”
    ££I assume it as a principle, that whereyer a trustee, who would be compellable by a Court of Chancery to perform an act for the benefit of cestui que trust, does that act without an order from the court, the same shall be assumed as having been done by its order, subject-however, to a review of the court, if circumstances require it. Upon similar grounds, if an administrator is bound to place out. a surplus fund at interest, upon suifieient securities to be sanctioned by the Orphans’ Court, and he does place that fund out upon securities without applying to the Orphans’ Court for its order, the act is to be considered as revocable only by the Orphans’ Court, subjected to alteration as future contingencies may require. The only distinction would appear to me to be, that in case the approbation of the c.ourt was obtained, the administrator would not become a sufferer from the failure of the securities; if not obtained, he perhaps would; as a testamentary guardian cannot change the nature of an infant’s estate, real into personalty, or personal into real, unless authorized by the will so to do, or where it is manifestly for the infant’s advantage; and as a guardian appointed by a Court of Chancery, cannot make such change without leave of court, so neither can they exchange securities at their own option, or substitute, without authority, one description of security for another. If this principle holds good with respect to a guardian, whose authority to contract extends to the person and estate of the minor, I can see no reason for restricting it in the case of an administrator, whose authority over a surplus fund ceases the moment a surplus fund exists; except in so far as he may be considered as the trustee under the appointment of the Orphans’ Court, for laying out on proper security.
    Independent of the effect of the acts óf assembly referred to, the Orphans’ Court have an unlimited jurisdiction over all subject matters that relate to interests and estates of minors. It can force the administrator to a settlement, compel him to to pay a surplus in his hands to such receiver as it shall appoint, or direct him to lay it out in such securities as may be deemed suifieient, and enforce all those orders by attachment; more particularly when a surplus fund is once invested by the administrator, does this general jurisdiction of the Orphans’ Court attach. It then becomes the guardian and trustee for the minor, and any attempt to divest the power of the court over the funds so invested by an act of the administrator, either by substituting one security for another, or by receiving the money, is an act which may render the administrator amenable to the process of the court.
    Another thing that is observable is this, that the surplus of the proceeds of land sold by order of thé Orphans’ Court, for the payment of the debts of the intestate, is distributable as real estate. In such case, the widow is entitled only to the interest of one third of the residue during her life; if any thing further was necessary to show that the authority of the administrator ceased, quasi administrator, over the surplus fund arising from the sale of real estate, the case of Diller v. Young, 3 Yeates 261, would abundantly show it.
    . “ Conceiving them as I do, for .the reasons already given that the administrator has no authority given him by virtue of his appointment, to interfere with the real estate of a decedent, that the power to sell under the order of the Orphans’ Court, is a power not coupled with the interest, and must therefore be strictly pursued, that the surplus money arising from the proceeds of the sale, has all the attributes of real estate; that the administrator is bound Both by express law, and by necessary inference to invest such surplus under the control of the Orphans’ Court, and that when such investment is made, whether under the order of the Orphans’ Court or without it, the authority of the administrator over the fund ceases, the conclusion necessarily forced upon my mind is, that entry of satisfaction by John Darragh, as administrator of the estate of David Davis, on the mortgage given to the administrators of that estate, is void and invalid, and that the substitution of the mortgage of J. L. Glaser, for that of Daniel Beltzhoover was done without authority, and is not binding on the heirs and representatives of David Davis’s estate. And it is further my opinion that TV. Hays, whether guardian or prochein amy of the infant heirs of David Davis, had no right to consent to the substitution, and that his act in so doing does not bind his wards.
    ‘£ But as to them the act is voidable merely, and'not void. I am disposed' to think that the guardian, who was constituted to act until the minors arrived at the age of fourteen, continued his guardianship after their arriving at this age, provided no new guardian was appointed, and that his acts as\£uch, if lawful, ought to be recognized.
    
      “ The question to be decided by you is, whether the representatives and heirs of David Davis, have done any act by which the avoidable act of their guardian has been confirmed. Is there proof of sueh assent by Mrs. Davis, as ought to' preclude her from a recovery; is there evidence of any assent on the part of Thomas Davis, one of the minors, after he had become acquainted with the difficulties in which this exchange was involved, and the circumstances under which it had taken place.” '
    A verdict and judgment were rendered in favour of the plaintiffs.
    
      
      Selden, for the plaintiff in error.
    Mrs. Potts has come into the matter after the entry of satisfaction, and for a valuable consideration; she is therefore to be favoured, if she can be. This is to be looked on as personal property. Land decreed to be sold is money. This debt would go to the representatives of the mortgagees. 10 Mod. 316. Grier v. Huston, 8 Serg. & Rawle, 402. On the repayment of money invested under the provisions of the act of assembly, and directions of the Orphans’ Court, the executor may re-invest. But this cannot be treated as money put out, because when done so, it cannot be put out for longer than a year; here the mortgage was payable at seven years. As respects the mortgagor or these claiming under him, this was money. 2 Yeates, 361. In 3 Johns. Ch. 552, King v. King, are cases, showing that where the administrator applies the assets wrongfully, notice of it must be brought home to the party: there must be collusion. 7 Johns. Ch. 160. Field v. Schieffelin, Ib. 17. Lodge v., Hamilton, 2 Serg. & Rawle, 491. Grider v. M'Clay, 11 Serg. & Rawle, 224, is express, that the money is personal, and that the guardian has power over it as such. , If money, the assent of both trustees was evinced by such on the mortgage and bonds; and the direct release of the guardian, or the cestui que trust is sufficient to release it.
    
      Fetterman, contra.
    
    There is no evidence of improvements by Young, after evidence of satisfaction; and, as to Mrs. Potts, Poe, her agent, had notice of all the facts, and she is therefore to be affected. 11 Serg. & Rawle, 377. Petrie v. Clarke, 2 Atk. 121, Harrison v. Harrison, 2 Eq. Ca. Abr. 742. 10 Johns. 425.
    
    
      Baldwin, same side.
    The act was not done for the benefit of the minors, or of the estate; but to oblige the mortgagor. A less security is taken, and this was a breach of trust, both by the administrator and the guardian: as between the parties to this devastavit, and the cestui que trust, it is not conclusive. Both administrators could lawfully do this. But, one cannot exercise the trust. This is not an ordinary case of administrators. Snyder v. Snyder, 6 Binney, 497. decides that one has not the power of all. Admission of debt by one administrator will not take debt out of the statute of limitation. Wallace v Irvine, M. S. There was actual fraud in misrepresenting the existence of the order of the Orphans’ Court, recited in the entry of satisfaction, and the act was void as to any bail or purchaser. Between Davis’s heirs, and Beltzhoover there would not be doubt or difficulty. We contended before the jury, and with effect, that Mrs. Potts stood in no better situation; and that Glaser’s mortgage was purchased by Poe, with her money before this transaction. If so, she cannot be a bona fide purchaser.
    
      Forward, in reply.
    The cause was put to the jury exclusively, on the supposed defect of power, or incompetency of one administrator to do the act. This excluded every other consideration, and if the court be wrong, in this, judgment must be reversed. Jacomb v. Harwood, 2 Ves. 266, 267. One of two administrators has the same power as one of two executors; one can give an acquittance. The party who seeks the aid of equity must show that he was imposed on. Puller v. Brady, 2 Atk. 517. Darragh and Hayes were liable, and why look to us?
   Gibson, C. J.

The acts of one eo-executor bind all the others, by reason of the confidence reposed in them individually, in consequence of which each has full power over the assets. With regard to administrators, who are the depositaries of no confidence whatever, but give security for the faithful performance of their office, this anomaly did not originally hold; the courts requiring, in accordance with the rules of the common law, the concurrence of all. But the law seems now to be settled otherwise, and their acts are (for the sake of uniformity, I presume,] put on a footing with those of executors. But this is immaterial in the investigation of a transaction, in regard to which the authority of persons who happen to be administrators, is derived neither from a testator, nor from' the register; and is therefore not to be qualified by an office which serves no other purpose than to designate them as individuals on whom a particular authority has devolved. The business cast on them, was not of a testamentary nature, nor within either their official security or the scope of their official powers, which have regard only to the personal estate. They had a new office, involving new duties, and creating new responsibilities. They were therefore trustees of an estate that might have been committed just as well to any body else, and by any other designation. Why should the-trust be qualified by'this designation, when in cases of devises to executors to sell for payment of debts, courts of equitj1- disregard it altogether, holding, notwithstanding the old distinction, that the executor shall in all eases be deemed a trustee, and the money treated as equitable assets, instead of going in a eourse'of administration; and this, whether the devise be of a naked power to sell in the capacity of executor, or the descent be interrupted by a devise of the land to the executor, and his heirs. I certainly do not pretend, that the produce of land sold to-pay debts, is equitable assets here, or that we have such a thing;- but, the chancery cases on the subject, of which the books are full, serve to show that where an executor is used as an instrument to convert land into money, he does not necessarily act. in his official capacity, although in regard to that particular duty, he be the depositary of the special confidence of the testator. What stronger circumstance is there in the case of executors or administrators, acting under an order of the Orphans’ Court? We have then the case of two trustees, who sold without any direction as to terms, and took, a mortgage for the purchase money, in which the trust i$ recited; one of whom executes, in prejudice of the trust, and without the concurrence of the other, what would be in substance a release; and it is first material to inquire what are the legal, as distinguished from the equitable consequences of the act. The latter shall be considered in the sequel.

At law, where only the legal estate is regarded, the case would be considered as that of two joint mortgagees, neither of whom could release without the concurrence of his companion; the rule being indisputable, that no injurious act, (as this unquestionably was,")'of one joint owner shall prejudice the other. Two tenants in common of. an advowson bring square impedit, and one of them releases; yet the other shall recover the whole presentation, (Co. Lit. 197 B.) So, where one of two tenants in common of a wardship, releases to a person who has ravished the ward, the other shall, notwithstanding, recover. (Ib.) But it almost seems like affectation to use authority for a principle so familiar.

The consequence is, that Mr. Darragh’s acknowledgment of satisfaction, release, or substitution of the one mortgage for the other, (by whatever name it is called,) was invalid at law; and Mrs. Potts laid out her money, on the credit of a defective title known to be such at the time. By what possibility then, can she be a purchaser without notice? If there be any principle of equity established beyond dispute, it is, that he who trusts to any thing short of a legal title, perfect at least on the face of it, does so at his peril. Its imperfection, being obvious to the senses, is alone sufficient to put a purchaser on inquiry, and consequently to affect him with notice. In taking an assignment of a debt, secured by the second mortgage, under a belief that the lien of the first was discharged by a release which was defective at law, Mrs. Potts therefore acted at her peril; and, an error in the opinion delivered to the jury, on the basis of her being a purchaser without notice, cannot be assigned here, as the fact assumed does not exist.

But there is another, and an insuperable objection to her being protected as a purchaser without notice. It will hardly be denied, that if the acknowledgment of satisfaction had been executed by both of the mortgagees, the transaction might nevertheless have been unravelled between the original parties. And why? Because the mortgagor with a full knowledge of the circumstances, was a party to an act which is a breach of trust, and could therefore, gain no advantage from it. Then to come to the point. Here, both the trust, and the act which was a breach of it, appear on the pace op the mortgage deed. The whole arrangement is stated in the margin; and Mrs. Potts, if she knew any thing of the transaction at all, knew the whole truth. If then, the arrangement was originally a breach of trust, she afterwards became a party to it, with, at least, constructive notice of the circumstances, and stands in no better equity than Beltzhoaver himself, under , whom she claims as an assignee.

. I have omitted to notice the defence of Young, the terre-tenant, because his improvements were, made, with the same means of knowlege which I have attempted to show, are sufficient to affect Mrs. Potts', and he is consequently to be postponed.

The question then stands as it would between the original parties; the inquiry being, whether, under the circumstances, equity would aid the defective execution of a release such as this, by considering it as an agreement, and decreeing it specifically. And it is an undoubted rule that no act of the trustee shall prejudice the cestui que trust.’ I shall not examine in what cases the trustee, may or may not change the nature of the trust estate, but refer to Mr. Fonblanque’s note, (1 Fonb. 167,) where the authorities are collected; with this single remark, that where the act of the trustee is at the time apparently prejudicial, a party having notice of the trust, can derive no benefit from it. There is no way to avoid the application of this rule to the case here, but to say that the parties beneficially entitled, had not an interest specifically in the mortgage; but, that the trustees having sold without any direction as to terms, might call in the mortgage money when they pleased; and having pledged the responsibility of themselves, and their sureties for the eventual payment over of the proceeds of the sale, the money stood at their risk, in the hands of the purchasers, and they might well treat as their own mortgage that was taken for their individual security. Fai; otherwise. The money, is in the place of land, in which the parties beneficially interested, had a specific interest; and after all the purposes for which it was converted have been answered, and no benefit can accrue to any one from having it called in, it would- be a narrow construction which would deprive them of the fortuitous advantage of real security, in addition to the personal responsibility of the trustees and their sureties. The very reason why a trustee cannot capriciously change the nature of the trust estate is, that the cestui que trust has a specific interest in it, which is to be regarded. The debts being paid, the parties beneficially interested, on coming of age, might have compelled the administrators to assign to them; and they have in effect, attained this object by suing on the mortgage to their own use; but they might at the same time have proceeded on the recognizance of the administrators, and their sureties. Nor can we inquire into their views in adopting the present course. They may pursue on all their securities, or favour particular parties, if they think proper, by pursuing on but one. Nor do I view as of the least importance, that the defective execution of the acknowledgment of satisfaction, has since received the sanction of the other mortgagee, of the guardian of one of the children, and of his ward after he had become of age; the acts of these cannot prejudice the other children. This, then being the case laid before the jury, I cannot perceive that the judge erred, in direcing a ver» ■diet for the plaintiffs.

Duncan, J.

The case is very fully and clearly stated in the opinion delivered by the Court of Common Pleas, and the true questions-stated. That opinion, as to the power of one administrator, where there are more than ohe, to enter satisfaction on a mortgage given to the intestate, so as to discharge the lien as to the rights of third persons, bona fide acquired; I think cannot be questioned. Nothing can be clearer, than that receipt orsatisfaction entered by one administrator on a mortgage discharges the lien. The administrators represent the testator: they are but one person in point of law. One can dispose of the assets, receive money, enter •satisfaction, and do every act without the intervention of the others. This, I think, is the law. Public convenience requires that it should be so, and general usage proves the general understanding. Administrators may assign a mortgage; forthe assigneeof the administrator of a mortgagee may maintain an ejectment in his own name. Simpson’s Lessee v. Ammons, 1 Binn. 175. The money secured by the mortgage is assets; consequently, the executor or administrator has the power over it. I think I may lay down the rule safely, and in the broadest terms, that one executor cando any act — not so of trustees. The signature of one executor is sufficient, but not the signature of one trustee. The power of executors and administrators, as to the disposition of assets, is the same, though their authority proceeds from different sources: executors, from the will of the testator; administrators, from the letters of administration. Lands are equally assets for the payment of debts in the hands of an administrator as of ah executor: they may, in both cases, be taken in execution on judgments obtained, and sold by the sheriff. Mead v. Lord Orrery, (3 Atk. 235,) settled some very important principles; that executors may assign a mortgage, and that a disposition of assets, by an executor, is good at law, unless done collusively; and, where-ever the party has the legal estate for a valuable consideration, it must be a very powerful equity to take it from him. It likewise establishes, that notice of the mortgage being a trust for residuary legatees, and that the parties had notice, is not material. This notice, though material in cases of public trust, is not so in the particular case of an executor; for Lord Hardwicke very justly says, that this would extend to any case of a will; and, if this doctrine were to prevail of notice to the aissgnee of an executor, nobody would dare to purchase or take an estate from an executor. That distinguished Chancellor proceeds further, and says, “This is the first attempt, by a residuary legatee, to overturn an assignment by an executor of the assets of the testator. Creditors, even, though they have a demand against the executors for the whole of the assets after the account is made up, yet not by way of specific lien.” He denies that executors are to be considered as trustees, and that therefore the assignment was void, not having a tendency to the due administration of assets, and concludes by resting the assignment on its true ground; that is, fraud between the parties to the transaction, to the assignment, fraud in the executors. It is not pretended that there was any collusive act of the administrators here: the character of those who advised the measure, the character of the sureties in the indemnity bond, and the character of the guardian who assented to it, remove all imputation of collusion. These honourable men all supposed, that the second mortgage would be an adequate security; that Beltzhoover would be relieved by the substitution, and the estate of Davis not injured; and, if it was, the bond of indemnity would secure the administrators and guardian, and protect the estate of Davis from final loss. This agreement was assented to and ratified by all who could assent, and nothing but the fall of property, unexpected by all men, would have brought about any alteration or disturbance.

As between Beltzhoover and the administrators, the question would be a very different one: his conduct might be impeached by a concealment of the circumstance of the additional bond assigned to Poe being included in the mortgage, unknown to the administrator and guardian; though this might be very difficult to make out, when they had possession of the mortgage, when they received it in satisfaction, and acquiesced in the bond of indemnity. But, as to Poe himself, 1 have some doubts. As to Mrs. Potts, I have none, if she was an assignee bona fide of the debt secured by the mortgage, and advanced'her money on the strength of the bond being secured by the mortgage to Beltzhoover; that, as to her, if she stood in that situation, this mortgage, on. which satisfaction was entered on the margin of the record, could not affect her right, or postpone her claim. She has a superior equity to the administrators, for this is their suit; and, if Mrs. Davis could ratify the acceptance, she has done it: she has, on the record, ratified the acceptance; and her suit against Glaser, receipts of money on the second mortgage, ratified by Mrs. Davis, by the guardian, and by Thomas Davis, are of this character!

. As to Young’s part of the land, he now holds it discharged of all equity.' The entry of satisfaction clearly exonerated him; and, being exonerated at law, his equity is equal to that of the distributees, and superior to that of the administrators. He has since made valuable improvements; he might repose in safety, seeing the mortgage was satisfied. How could he bring suit against Beltzhoover, to compel him to satisfy a mortgage which had already been satisfied on record? This satisfaction-was good by one administrator, and the entry by one is a discharge at law; and there is nothing to affect the conveyance of Young, or of Mrs. Potts, the assignee.

As to those third persons, Mr. Darragh, nor the administrator, (after his ratification,) nor Mr. Hays, the guardian, nor the diátributees, can impeach it, on the ground of Mr. Darragh and Mr. Hays being ignorant of the contents of the second mortgage, which on record the^ acknowledge to have received in satisfaction of the first mortgage. And the presiding judge very properly stated, that he had little doubt, that if Mr. Darragh had authority orginally to substitute the mortgage of Glaser for that of Beltzhoover, his conduct was such subsequent to the discovery of the imposition practised on him, as would have concluded those whose trustee he was, from recovering as against those who acquired an interest after the entry of satisfaction. But the error into which the court fell, however just and accurate, was the opinion of the acts of one administrator, ratified by the other in the most solemn manner of record, stating the satisfaction not to be valid, because, in this case, they acted not as administrators, but as trustees. Now, my opinion is, that they acted in the character of administrators; that their power was as administrators, and administrators solely; that the proceeds of the sale were assets in their hands, to be distributed in a course of administration; that they held the mortgage as assets for the payment of debts, and for distribution; that neither the creditors nor distributees had any lien on the mortgage. Whenever the Orphans’ Court have authorized administrators to sell, their authority over the real estate continues in their character of administrators, quo modo, assets from the granting of letters; that is, by petition to the Orphans’ Court, decree of the Orphans’ Court, sale returned, and confirmed.

' The first act of 1705, empowered them, in their character of administrators, to sell for the payment of debts and maintenance of children, on obtaining a decree of the Orphans’ Court for that purpose; and, even where there is a return of no children, it was decided in the case of Humphrey Fullerton, at Chambersburg, that the Orphans’ Court had power to direct a sale for the payment of debts where there were no children. Snyder’s Lessee v. Snyder, 6 Binn. 496. The act of 1794, under which this sale was made, does not change, in this respeet, the provisions of the act of 1705. The act of 1808, (Purd. Dig. 300,) makes no alteration, except that it directs the Orphans’ Court to require sufficient security from the administrators, conditioned for the faithful performance of the duties committed to them, on the sale of real estate. Nothing can more clearly prove, that the power is conferred on them in their character of administrators, than the consideration that they alone can exercise it. The Orphans’ Court can intrust to it to no one else; the deed could be executed by no one else: and the legislature, by the act of the 3d of Hpril, 1802, so construe the law; they provide for a casus omissus — the death of an administrator after sale and before conveyance. In all such cases, it shall be lawful for an administrator of the goods not administered on, of such intestate unto whom administration shall be granted, to and for the executors and administrators of the person so dying, to-make and execute deeds to the purchasers.”

Thus every line of every law enabling administrators to sell real estate grants them the power as administrators, and in the character of administrators and no other, and makes the proceeds assets for the debts, and distributable to the next of. kin. The Court of Common Pleas considered the authority of the administrator quasi administrator ceased over the surplus arising from the sale of real estate, and that Diller v. Young, 2 Yeates, 261, settled the principle. It is apprehended that this is a mistake. He has control over the land as he has over the personal estate. The sale does not, by converting the real into personal estate, change the succession; the surplus goes .in the same proportions and interest as the land itself, but still it comes into the administrator’s hands in his character of administrator. I do not mean to say, that the administrator can i’elease the lien on lands without payment, as between him and the purchaser; but if he takes a mortgage,, and enters satisfaction, and there is a subsequent purchaser without notice, he holds the land discharged of the lien. What clearly proves the authority of the administrator’, is, that payment to him of the fund would only be legal payment; satisfaction alone, by him, be legal satisfaction. If he commits a devastavit, the act of 1808 provides for that very case: it requires him to give security, sufficient security, conditioned for the faithful execution of the powérs committed to him, in making such sale, and to account for and pay over the proceeds thereof, in such manner as the court shall legally decree: just the same security as is given in personal estate, the same distribution, and the same mode of settling the accounts. The administrator is a person appointed by the law, intrusted by the law, required to give security to the satisfaction of the court, as well with regard to the disposition of the surplus arising from the sale of real as of personal estate. His original bonds only comprehended the personal estate. Where a new duty is contemplated, a new security is required; a new administration bond to cover the proceeds of the sale.

An executor or administrator is, in some respects, a trustee: an executor, to distribute according to the direction of the will, an administrator according to the directions of the law. They do not take in their own right, but as trustees for others. Still, the distribution of assets by them is binding, unless there is collusion or fraud, which is not alleged here; and,, if it even were found, could . not affect third persons.

The administrators may have committed a devastavit, though there has been no fraud. I do not say whether they have, under all the circumstances; but it is pretty evident, by taking the bond, Mr. Darragh and Mr. Hayes, the guardians, considered they were running some risk, and they took ample security against it; not. only an indemnity, but an obligation, that the bond and mortgage of Glaser shall be sufficient security for the whole amount of Beltzhoover’s mortgage to the administrators. Satisfaction was intended to be entered, satisfaction was entered. It. was done for the very purpose of discharging the land from the first mortgage: no one can doubt this. And I think, under all that has been done by both administrators, the entry of satisfaction and ratification, all that has been done by Mrs. Davis and the guardian since, that neither Young nor Mrs. Potts’ interest eould be affected by an allegation that this satisfaction was invalid. What would be the situation of the recorder, if this was not a legal satisfaction, he having given a certificate that there was no mortgage but the second unsatisfied? He would be responsible to Mrs. Potts, if on the faith of that certificate, she took an assignment of the bond secured by the second mortgage. For my own part, I think he never ought, because satisfaction was entered by one having authority to enter it. This appears to me to be the action of the administrators to disaffirm their own act, to the injury of innocent persons; an act which Mr. Darragh and Mr. Hayes considered they ran some, risk in doing, and from the effect of which they guarded themselves by the most ample security.

On the whole, my opinion is, that the judgment should be reversed, and a venire de novo awarded; because I think that each of the co-administrators had a power over the fund which each co-trustee may not possess; and, that as each administrator had all the rights and authority, the entry of satisfaction by one was good at law, and that there is nothing in equity to impeach either Young or Mrs. Potts. Co-trustees are, in. this respect, distinguished from co-executors: the receipt of one co-executor is sufficient; each executor, consequently each administrator, has power over the whole fund — all joining in giving the receipt, or entering satisfaction is not necessary, Toll. Exec. 485: though the entry of satisfaction might subject the administrator to an action for devastavit, still, as to innocent third persons, it would be quasi payment — payment which the administrators cannot gainsay. At law, as well as in equity, a mortgage is merely a security for the payment of money. A mortgagee has nothing but a chattel interest. Notwithstanding their form, mortgages are not considered as conveyances of land, within the statute of frauds. The assignment of a debt, or passing it, even by parol, draws the land after it as a conveyance. The debt is considered as the principal, and the land as an incident only. 11 Johns. 534. This chattel the one administrator had power to aliene, to assign, or to deliver up: he had the same dominion over it, as any other chattel of the intestate. The entry of the satisfaction is not necessary to the discharge of a mortgage, any moi’e than the dischai’ge of a judgment. The delivery of the mortgage, or any other discharge by an administrator would be sufficient, unless the act were fraudulent and collusive between the parties, and this would only affect parties to the fraud, not third persons, innocent, bona fide, and having an interest in the discharge of the mortgage.

But, the. court being divided, the Chief Justice and Mr. Justice Tod being of opinion there was no error, their opinion prevails against the opinion of my brother Rogers and myself; Judge Huston, not having been present at the argument, and being connected with Mr. Hayes, the guardian, declining to take any part.

Rogers, J., concurred with this opinion.

Tod, J., concurred with the Chief Justice.

Huston, J., took no part, being a connexion of one of the parties interested; and the court, being equally divided,

Judgment affirmed.  