
    Ager T. Morse et al. vs. George R. Clayton, Administrator de bonis non of John Oliver, deceased.
    The mere fact that a former administrator had in his possession a note of a third party, doe to his intestate, is not an administration of such note; nor will his ceasing to be administrator, and delivering the note over to the guardian of the children of his intestate, make the note any the less assets, which may be administered by an administrator de bonis non.
    
    Where a note secured by mortgage is payable to a deceased person, no one 4 but his administrator can enforce the collection of the note by the foreclosure of the mortgage ; nor will it be any obstacle to the administrator’s right to foreclose, that by some means a judgment has been had at law on the note against the maker in favor of the guardian of the heirs of the payee.
    Where a note secured by mortgage does not purport to bear interest on its face from date, while the mortgage to secure its payment recites that it is to bear interest from date, the mortgagee will be entitled to the interest stipulated for in the mortgage.
    An acknowledgment to admit a deed to record need not be in the very words, but only to the effect, of the form prescribed by the statute.
    Therefore, where a subscribing witness stated that the deed was signed, sealed, and delivered in his presence, and in the presence of the other subscribing witness, it is a sufficient compliance with the law, which provides that the witness shall swear that “ he saw the grantor sign, seal, and deliver the deed to the grantee; that he subscribed his name as a witness to it in the presence of the grantor; and that he saw the other subscribing witness (naming him) sign the same in the presence of the grantor, and in the presence of each other, on the day and year therein named.”
    There is no statute in this state which prescribes the duration of a mortgage lien ; it seems that its lien will at least continue in force as long as the debt it is intended to secure is binding.
    Where a defence to a bill of foreclosure is predicated on the ground that the mortgagor had but a leasehold interest which he forfeited by non-payment of his rent, and so his lessor had re-leased the premises to those in possession, the original lease to the mortgagor must be produced to show the conditions upon which he held, otherwise the court cannot judge whether . he ever held on condition.
    
      The usual mode of talcing advantage of a breach of condition for the payment of rent, is by an action of ejectment after actual demand of the rent in arrear. An ordinary decree of foreclosure is erroneous which decrees a sale for cash, unless it be so rendered at the desire of the parties.
    Where there is a decree of sale of several distinct pieces of property to pay one debt, the decree should order a sale of only so much as may be necessary to pay what is due.
    On appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    George R. Clayton, administrator de bonis non of John Oliver, deceased, on the 20th of April, 1846, filed his bill to foreclose a mortgage executed by Ager T. Morse and Daniel Baldwin, to secure the payment of three writings obligatory executed by them; there were nine other defendants who were alleged to be interested in the property mortgaged, and to hold subject to the mortgage. The facts are sufficiently stated in the opinion of the court. The vice-chancellor decreed a foreclosure of the mortgage, and the defendants appealed.
    
      Harris and Harrison,-for appellants,
    1. The authority of an administrator de bonis non, embraces only such of the personalty as remains unadministered, in specie, unaltered and unconverted by his predecessor. 2 Porter, 550; 5 Rand. 51; 2 lb. 294; 9 Leigh, 580; 1 Rice’s Eq. R. 40; 7 Gill 6 Johns. 13; 1 How. 68; lb. 87, 146, 154; 5 S. <fc M. 130; 6 lb. 323. Upon the guardian’s executing bond, the distributive share of the ward is'delivered to him. How. & Hutch. Dig. 337. *
    The guardian can maintain an action in his own name for the use of the ward. 5 Steward & Porter,. 114; 5 Porter, 508; 3 Alabama Rep. (N. S.) 197.
    The cases even go so far as to determine, in a suit against the security on the administration bond, that where an administrator is also appointed guardian, and more than two years have elapsed from the grant of administration, after the expiration of two years, it was his duty to retain as guardian, and the law would presume he did so retain. Carrol v. Bosley, 6 Yer. 220; 6 Dana, 68; lb. 5; 1 Hill’s Ch. R. 285 ; 2 Bailey’s R. 60; Chitton’s Probate Court Law, 482.
    In this case Bibb received and accounted to the court as guardian, and Clayton and Holdeness received and reduced the claim to judgment, as guardians jointly, and now Clayton disregards the whole proceedings, abandons the judgment, and proceeds, as administrator de bonis non, solitary and alone, upon the debt merged in the judgment; and the court sustains the proceedings.
    2. It was error to allow interest from the date of the bonds. The mortgage is but a collateral security, and the indebtedness is independent of the security. The bond or note given is the evidence of the debt and the foundation of the remedy, the mortgage is merely collateral to it. The writings obligatory themselves are higher evidence than the deed attempting to describe them, and the more so, as the deed refers to the writings obligatory, as the source from whence the description is obtained. Stark v. Mercer's Administrators, 3 How. 381; 2 Cow. 195.
    3. The parties in possession claim to be bond fide purchasers, without notice.
    The acknowledgment upon which the deed was attempted to be recorded was insufficient. The essential requirements of a probate are, under the statute, that the witness should swear to the subscription of all the parties, setting out their names, that the witnesses subscribed in the presence of the maker of the deed, and in the presence of each other, and on the day and year mentioned in the deed. How. & Hutch. Dig. 344, § 7, p. 345, § 12; Fipps v. McGehee et al., 5 Porter, 413, 434; 12 Alabama Rep. 22; 3 Cow. & Hill’s Notes to Phillips, 1243, 1244; 13 Ala. Rep. 375.
    The acknowledgment in this case does not show that the witness subscribed his name as a witness in the presence of the makers of the deed, or that he saw Evans sign, either in his presence or of that of the makers of the deed, or that he or Evans subscribed as witnesses on the day and year mentioned in the deed.
    4. The mortgage has lost its lien against subsequent purchasers by virtue of the unreasonable delay. Where a plaintiff neglected to enforce his judgment lien for a period of four years, it was held to be fraudulent against bona fide purchasers of the judgment debtor. Speight v. Adams, 1 Freeman’s Ch. R. 318; Robinson, et al. v. Green, 6 How. 228. Such delay is fraudulent. See Divver v. McLaughlin, 2 Wend. 599.
    5. Several defendants leased from the original lessors, but it is contended by appellee, that the leases conveyed no title, because the trustees of the Franklin Academy did not enter and declare a forfeiture, in due form of law, on the premises, on the day, &c.
    The agreed state of facts expressly shows, that during the years 1838 and 1839, Morse & Baldwin bargained, sold, transferred, and assigned the several lots in question by deeds, duly recorded, to different individuals, who again sold, &c., and that the parties now in possession went in, originally, under some one claiming under, and through, Morse & Baldwin. The parties in possession were claiming the whole unexpired term, and by the terms of léase, the contracts were assignable. The property was leased to Oliver, and, as the bill shows, he conveyed all his title and interest to Morse & Baldwin, and they executed a mortgage upon the premises. No entry, or demand, or forfeiture, is necessary where the parties, by mutual agreement, enter into a contract that necessarily waives them all. The acceptance of a new lease is a surrender in law of the old one. 6 Wend. 569; 12 Johns. R. 357; Bacon’s Ab., Title, Leases. The estate, by yielding it up, is drowned, by mutual agreement, and the due time of entry, demand, &c., has no application.
    6. In a decree for selling mortgaged estate, provivsion ought to be made for the payment of the surplus to the mortgagor. Downing v. Palmateer, 1 Monroe, 66.
    7. The commissioner is ordered to sell for cash. This is in the face of the statute. Hutch. Code, 770, § 4. There was no request of the defendants for such a sale.
    
      W. P. and J. F. Jack, for appellee.
    1. A mortgage is but a chose in action, a mere chattel interest, which descends to the personal representative, and not to the 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 dé 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. Kelsey 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 seqnitur legem, and we would have at least that length of time on the mortgage. From the time when the money was due in 183S, 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-payment 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. Ottley 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, 5S6, 593; 5 Wend. 603; 1 McCord, Ch. R. 395,397; 7 Mass. 138, 139; 4 Johns. 144, note 1; 6 lb. 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.
    
      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 $4000. 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 iu 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 183S, Bibb ceased to be guardian, and the complainant, George R. Clayton and one Hoiderness, 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 objection, which is, that Clayton cannot maintain this suit as administrator de bonis non, because Eibb, 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. 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, tlyat 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 nbt 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 Y 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 secure. 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 by the trustees of Franklin Academy for two of the same lots. The counsel have submitted as the evidence in the case an agreed state of facts. From this it seems that all the defendants derived title, either directly or remotely, from the mortgagors. Butterworth, however, also claimed to hold lot five by lease from the trustees of Franklin Academy, long subsequent in date to the mortgage; and Ottley set up a title of the same kind. The validity of these leases is maintained on the ground, that the term of Oliver was forfeited for non-payment of rent, and that consequently the trustees had a right to make new leases. This power is denied, because, as it is said, there was no entry after the breach of conditions. This question is easily answered. In the first place, it has not been shown that Oliver held subject to a condition. The lease to him is not set out. We cannot say that there was a forfeiture, unless the title and condition are before us. The usual mode of taking advantage of a breach of condition for the payment of rent, is by action of ejectment after actual demand of the rent in arrear. 3 Cruise, 300. But the question admits of another answer. The under-tenants may have been bound for the annual rent. If so, they could not submit to a forfeiture, take a new lease, and set it up against their original lessor. It is competent for parties to stipulate for the payment of rent as they may think proper. Now, as neither the original lease to Oliver, (if he held by lease,) nor the leases to defendants from him are before us, we cannot decide on the question of forfeiture. The answer of Ottley alludes to ■this question, but that is not evidence; nor are counsel sufficiently distinct in their arguments to give us full information on the subject. In the agreed statement of facts it is not found. The construction and effect of the lease to Oliver was a matter of law, and it should have been produced. We cannot decide that á right has been forfeited, until we know what that right is.

But the decree was erroneous in directing the sale to be made for cash. The statute directs that such sale shall be made on a credit of six months. Hutch. Code, 770, § 4. Yet it can be made for cash, or upon longer credit, if the parties desire it. Ib. 773, art. 17, § 3. As there were four distinct lots, the decree should have directed a sale of only so many as was necessary. As the decree is right except in this particular, it may be corrected in this court.

Judgment reversed, and decree directed to conform to this opinion.  