
    Daniel Drinkwater versus Sylvanus Drinkwater, Administrator of Pyam Prince.
    When the estate of one deceased is not insolvent, a creditor, who has obtained a judgment against his estate in the hands of his administrator, may levy his execution on real estate fraudulently conveyed by the deceased; or the administrator, being licensed to sell the estate of his intestate, may sell estate so conveyed, in whose hands soever it may be.
    Lands of a deceased intestate are not liable for the charges of administration.
    An administrator, as such, cannot maintain a real action to recover possession of the real estate of his intestate, except such as was mortgaged to the intestate.
    Neither can an administrator defend in any real action brought against him in that capacity by any one claiming as a purchaser from the intestate, whether the purchase was bona fide, or fraudulent as to creditors.
    This was a writ of entry, wherein the plaintiff declares that the said Prince, on the 23d day of September,. 1803, was seised in fee of the premises demanded, and being so seised, by his deed of that date, duly executed and recorded, for the consideration of 500 dollars, conveyed the same to the plaintiff, to hold in fee and in mortgage, and that he ought to be in quiet and actual possession of the same; but that the said Syhanus had, since that time, entered into the premises, and still holds possession thereof from the demandant.
    [ * 355 ] *Upon the general issue pleaded, the cause was tried at the last October term in this county, before Thatcher, J., and a verdict taken for the defendant, subject to the opinion of the Court, upon a report of the evidence to be made by the judge; it being agreed that if the Court should be of opinion that the verdict was wrong, it should be set aside, and judgment be entered against the defendant upon his default, as in case of a mortgage.
    The deed was produced at the trial, and its due execution was admitted by the defendant, as also the note mentioned in the deed for 500 dollars, payable in two years from September 23, 1803. On the part of the plaintiff, it was admitted that the witness to the execution of the deed saw no money paid, and did not know that any had been paid. Several of the plaintiff’s witnesses testified that, after the making of the mortgage, Prince applied to them to induce them to buy a part of the mortgaged premises, and said that the money would answer for the plaintiff as well as the land. The widow of Prince testified that she knew that her husband, both before and after making said mortgage deed, had frequently received sums of money of the plaintiff; and that, about the time when the mortgage deed purports to have been made, he came home on a certain day, and said he had been to make a mortgage of his wood lot, and of the lot on which he lived, to the plaintiff; that about the same time, she saw her husband have in his hands a number of papers, which appeared to have been notes made by him to the plaintiff, having pieces torn out of them in the places where the signature is usually made; and that on asking him what they were, he said they were the notes which he took up when the mortgage was made ; that in the fall of the year 18.04, she knew he was endeavoring to procure money by the sale of the mortgaged premises, to pay the plaintiff what he owed him, and that the notes aforesaid, with the signatures torn off, were, after his decease, delivered to the defendant.
    On the part of the defendant, several witnesses testified to conversation at different times with the plaintiff, after the making of said mortgage, in which he informed them that he never gave [ * 356 ] any valuable consideration for said mortgage deed * or note, and that they were intended only as a cover to secure the premises from certain creditors of the said Prince. The plaintiff objected to the admission of this evidence; but the ohjection was overruled. The defendant also produced a copy of his administration account, settled in the probate office on the 8th of July, 1807, from which it appeared that the personal estate of said deceased, in the hands of the defendant as administrator, exceeded the amount of claims paid, or then existing against said estate, in the sum of 159 dollars 97 cents. But it appeared that the costs already arisen in this cause exceed said sum; that the real estate, for which this action was brought, was inventoried as the estate of said Prince; and that the said estate was under a commission of insolvency when this action was commenced.
    And now, Mellen, of counsel for the defendant,
    being called by the Court to support the verdict in this case, admitted that a fraudulent conveyance was good and binding on the parties to the fraud; but he contended that in case of an action uptin a mortgage deed, the Court must first determine that something is due to the plaintiff, before the conditional judgment can be rendered in his favor. Now, if, in the case at bar, the Court are satisfied that nothing was ever given for the mortgage declared on, they cannot say that any thing is due to the plaintiff on that" account. Where nothing has been lost, no indemnity can be justly claimed.
    Further, though generally the grantor, or his administrator, shall not be permitted to go into evidence to show fraud, yet the administrator of an insolvent estate stands on different ground. He is the agent and trustee of the creditors, as against whom such a conveyance is undoubtedly void; and although the creditors may individually have another remedy, yet it will prevent the multiplication of suits, and other mischiefs, to admit the administrator to avoid the deed in the first instance, for the benefit of the creditors generally.
    
      Whitman, for the plaintiff,
    after observing that this estate would not be insolvent, but for the expense the defendant had put it to in defence of this action, was stopped by the Court, whose opinion was afterwards thus delivered by
   * Parsons, C. J.

The plaintiff has sued a writ of [*357] entry against the defendant, to foreclose a mortgage made to him by Prince, the intestate. On the trial, he produced the mortgage deed, the execution of which is agreed. The defence is, that the mortgage is not bona fide, nor for valuable consideration, but made to defraud the creditors of the mortgagor. And the question submitted is, whether in this case it is competent for the defendant to make this defence.

A conveyance to defraud creditors is good against the grantor and his heirs, and is void only as to creditors. For neither the grantor, nor his heirs claiming under him, can ova 1 themselves of any fraud, to which the grantor was a party, to defeat any conveyance made by him. The intention of the law, in establishing this principle, is effectually to prevent frauds, by refusing to relieve any man or his heirs from the consequences of his own fraudulent act. If creditors have been injured by the fraud, they are entitled to relief; and as to them a fraudulent conveyance is void.

When the estate is not insolvent, a creditor may have the benefit of the estate fraudulently conveyed in two ways. He may recovei judgment against the administrator, and may extend his execution on the estate; or the administrator, having obtained license, may sell the estate at public auction, and out of the proceeds may satisfy the creditors. But the creditors of the intestate, Prince, are not affected by this mortgage, unless there is a deficiency of personal assets. The evidence to prove a deficiency of personal assets is to be derived from an administration account settled by the defendant July 8, 1807, and from his claim to be allowed the costs of this suit. In looking into the account settled, it appears that, after all the debts are paid, there is a balance of personal assets in his hands amounting to 159 dollars 97 cents. To this sum must be added 17 dollars 40 cents, the charges for dividing other real estate. The judge has also allowed him the very extraordinary claim of 172 dollars 31 cents, for the expenses of lawsuits; Í say extraordinary, for the estate does not appear to have derived any benefit from them, as no judgments recovered are credited, while the estate is charged with 89 dollars 3 cents, due on report of referees.

[ * 358 ] * In any view, therefore, that can be taken of this account, it is most manifest that the intestate left personal estate more than sufficient to defray the charges of administration, and to pay all his debts. And as 9 dollars 25 cents are credited for the income of real estate, and there is also a charge for partition, it must be presumed that the intestate left real estate not encumbered by this mortgage.

From these facts, we must necessarily infer that the mortgage cannot, in law, be deemed fraudulent against creditors, unless the defendant has a lien on the lands mortgaged for the costs of this suit. It may be proper, therefore, to consider the connection an administrator has with the real estate of his intestate.

At law, the lands descend to the heir, subject to the payment of debts, if there be a deficiency of personal assets. The administrator frequently enters on the lands, and accounts for the rents and profits in the Probate Court; and this practice may not be inconvenient to the heirs. For the profits become a part of the fund, if wanted for the payment of the debts; and if not wanted, they form a part of the distributive shares of the personal estate. But in law, the ad ministrator has no right to enter into the lands, or to take the profits. He has no interest in them, but a naked authority to sell them on license to pay the debts, when the personal estate is insufficient, And lands not being liable for the payment of debts at common law, they are made liable by statute, which does not extend the liability to the defraying the charges of administration. The personal estate alone is a fund for the payment of those charges. It is true that when lands, recovered by an administrator by foreclosing a mortgage, or taken in execution to satisfy a judgment in a personal action, are sold on license for the payment of debts, the proceeds of the sale are considered as personal assets, and liable for the charges of administration, because those lands were received in satisfaction of personal assets belonging to the intestate at his death. Also when lands, of which the intestate died seised, are sold on license for the payment of debts, the Court authorize the sale of lands enough to defray the charges of the sale, and of accounting for the * proceeds. Because the statute giving [ * 359 J an administrator a power to sell lands on license, the Court granting the license must, by a reasonable construction, have authority to indemnify him in executing the power. So also a judgment creditor may levy his execution for his costs, as well as his damages, on the land.

But the administrator having no interest in the lands of the intestate, unless they have been mortgaged to him, and having no right of entry, he cannot bring any real action to recover seisin or possession of them. He cannot count on the seisin of the intestate, for he derives no interest, in the lands from the intestate by virtue of his administration. Nor can he count on his own seisin, for his entry on the tenant in possession will be tortious.

If the lands are liable to the payment of the intestate’s debts, he may lawfully sell them on license, whether they are in the possession of the heir, or of his alienee or disseisor. For no seisin of the heir of his alienee, or of his disseisor, can defeat the naked authority of the administrator to sell on license. Thus also when an authority is given by the testator to his executor to sell his lands for the payment of his debts, the executor may sell, notwithstanding the death or alienation of the devisee; and for the same reason, notwithstanding his disseisin. And the purchaser, by virtue of his deed, may lawfully enter into the lands sold, and may count on his entry as a lawful seisin, and try his title, if it be disputed,

If the lands of the intestate are wanted for the payment of his debts, as the administrator has no cause to recover the possession by a suit at law, so to allow real actions to be maintained by him would be mischievous. If the deficiency of personal assets amount to 50 dollars, how much land may he demand of the alienee of the heir, if he is in possession ? or by what description ? shall he demand a large farm, worth 5000 dollars ? and if he cannot recover the whole, what part shall he recover ? If he recover the whole, after land sufficient to pay the debts and charges of sale is sold, how is the defendant, who has lost his land by a judgment at law, to regain his seisin of the remainder ? but if the [ * 360 ] administrator proceed, without action, to sell, the owner of the land may, by becoming the purchaser, protect his own title; or if others will give more, enough may be sold, and his title to, and possession of, the remainder will continue undisturbed.

It may be objected that, if the purchaser at public auction conceives that he purchases not only the land, but a lawsuit, he will offer a much less sum, and cause more land to be sold. This is true; but it will be the folly of the owner of the land, by setting up his title as adverse to the sale, to lose more of his land; and if the administrator had no authority to sell the land, there is no reason that he should charge the estate with the expenses of a fruitless lawsuit.

After explaining the connection of the administrator with the lands of his intestate, we must infer from it that the administrator cannot defend in any real action brought against him as administrator, by any person claiming as a purchaser from the intestate; whether the purchase be bond fide, or fraudulent as to creditors. A recovery against him cannot prejudice the creditors; for their right to levy their executions on the land, and his right to sell on license, remain the same after as before the recovery.

As the defendant has, therefore, no claim on the lands mortgaged, to reimburse him his expenses in defending this action, the creditors are not in any manner interested in the event of the suit; and for the benefit of creditors only can the conveyance of the mortgagor be shown to be fraudulent; for as to all persons claiming as heirs to him, a conveyance cannot be impeached by a fraud, to which the grantor was a party. The expenses of this defence are unnecessary, and imprudently incurred; and so far are they from a charge on -the intestate’s land, that the administrator ought, in equity, to pay them out of his pocket, and not charge them against the estate.

Defendant defaulted. 
      
      
        [Dean vs. Dean, 3 Mass. Rep. 258. — Mitchell vs. Lunt, post, 654. — Ed.]
     
      
      
        [Gibson vs. Farley, 16 Mass. Rep. 280 —Hathaway vs. Valentine, 14 Mass. Rep 600. But see Rev. Stat. c. 71, § 11,12,13.—Ed.]
     
      
      
        [Wyman vs. Brigden, ante, 150.—Bigelow vs. Jones, post, 512. — Boylston vs. 
        Carver, post, 598. — Mitchell vs. Lunt, post, 654. — Gore vs. Brazer, 3 Mass. Rep. 523 — Scott vs. Hancock, 13 Mass. Rep. 162. — Willard vs. Nason, 5 Mass. Rep. 240 Hays vs. Jackson, 6 Mass. Rep. 149. — Ed.]
     
      
      
         [Hardy vs. Call, 16 Mass. Rep. 530. — Ed.]
     