
    George Smith and Others versus Nathaniel Dyer
    The heirs of a mortgagee, as such, have not such an interest in the mortgage as entitles them to enter, or to have an action for condition broken.
    This was a writ of entry, wherein the demandants, as heirs at law of Godfrey Smith, deceased, count upon their own seisin in fee and in mortgage within thirty years next before the 18th of February, 1817, the date of their writ, of the land described, and upon a disseisin by the tenant.
    Issue being joined on the plea of never disseised, the same was tried October term, 1818, before Thatcher, J., when the demandants read in evidence the deed of one Stephen Jordan, conveying the demanded premises to the said Godfrey Smith in fee, dated January 24th, 1784, conditioned for the payment of two promissory notes of the same date, made by the said Jordan to the said Smith, one of which was for the sum of £45 ] 2, payable in November, 1784, and the other for £90, payable in January, 1786. The demandants also produced the last-mentioned note, with sundry payments endorsed thereon.
    [ * 19 ] * The tenant read in evidence the deed of one Caleb Dyer, dated the 20th of August, 1811, conveying the demanded premises to him, and a conveyance of the same from one Joseph Calef to said Dyer, dated the 20th of November, 1806, and one from the said Jordan to the said Calef, dated in May, 1791.
    The tenant rested his defence upon the presumption of law, that the said promissory notes were paid. He contended also that no action lay for the demandants, as heirs, upon a mortgage ; and that if any action could be sustained, it must be brought by an executor or administrator.
    The demandants, to repel the presumption of payment, proved by the deppsition of Hannah Smith, widow of the mortgagee and mother of the demandants, that her husband died in March, 1791, leaving no will; that no administration had ever been taken on his estate, with sundry facts tending to show a balance yet due on the said promissory note for £90.
    ■ The judge instructed the jury, that if the evidence was sufficient, in their opinion, to repel the presumption of payment arising from the lapse of time, they ought to find a verdict for the demandants : and a verdict being so returned, the tenant filed exceptions to the said direction of the judge.
    
      Mellen and Hopkins contended for the tenant,
    as at the trial, that heirs could not maintain an action on a mortgage, which, whether in fee or for years, was in effect but a personal contract, collateral with the debt it was intended to secure, and belonged wholly to the personal representatives of the deceased mortgagee.
    They also argued at some length to the point, that if such action could be maintained in any case, the lapse of time in the present case was sufficient evidence of payment; and that the witness, whose deposition was read to the jury, was incompetent, on account of her direct interest in the event of the suit.
    
      Longfellow, for the demandants,
    supported the judge’s direction to the jury on the presumption of payment, and * main- [ * 20 1 tained the competency of the witness. As to the right of the demandants, as heirs of the mortgagee, "to maintain the action, he argued that the mortgage being a conveyance in fee, the estate descended to the heirs, defeasible by payment of the money due. At the death of the mortgagee the condition was broken, and the legal seisin descended from him to his heirs, and they count, in this action, upon that seisin in themselves . The condition of the mortgage is for payment to the heirs of the mortgagee, as well as his executors. The provincial act of 9 Will. 3, provided that payment made to the heirs should defeat the estate . And although now, by our statute of 1788, c. 51, executors or administrators may maintain the action, the right of the heirs to maintain it is not taken away; and when executors or administrators recover seisin, it is provided that they shall stand seised to the sole use of the heirs or devisees; and if it is necessary to sell the estate for the payment of debts, license must first be obtained, as in other cases of lands descended. If heirs recover, the land will still be liable for the payment of the debts of the deceased mortgagee. In the present case there has never been administration taken, and none can now be granted, because twenty years have elapsed since the death. Judge Trowbridge, in his argument on mortgages , has no hesitation in holding, that the estate of a mortgagee dying intestate goes to his heirs, although the money due on the mortgage may be paid to the administrator.
    
      
      
        12 Mass. Rep. 16, Parker vs. Lincoln & Al. —2 Mass. Rep. 493, Erskine vs Townsend.
      
    
    
      
      
        Ancient Charters, &c. 304
    
    
      
       8 Mass. Rep. 554.
    
   Parker, C. J.

The action is entry sur disseisin, and the demandants count upon their own seisin, as heirs at law of Godfrey Smith, their father, and allege their seisin to be in fee and in mortgage. There is no averment of an entry by their father, the mortgagee, in his lifetime, or by the heirs or any other person since his death, to foreclose the right of * redemption. But it appears from the [ * 21 ] mortgage deed, of which profert is made, that the condition has been many years broken ; and the action must now be taken to be brought in order to foreclose the redemption.

Now we think it very clear that according to the general principles relating to mortgages, as well as according to the provisions of our statutes, heirs, as such, have not such an interest in the mortgage, as will entitle them to enter, or to have an action for condition broken . For as the debt belongs to the executor or administrator, to be administered according to law; so does the mortgage, which is only a security for the debt. And if the heir were to count upon his seisin, without setting forth the conditional nature of the estate, the mortgagor might show it in defence, and bar him of his action. For as the judgment, according to the statute, must be conditional, and as the payment of the sum due within two months will prevent a writ of possession for the land, such plea by the tenant would show that the executor or administrator, and not the heir, ought to have brought the action. And this is of importance ; for otherwise heirs, who give no security for a right distribution of the effects of deceased debtors, might get possession of those effects, to the prejudice of the creditors, to whom the executor or administrator is properly responsible.

To avoid this inconvenience, and to remove doubts which had before existed, the statute of 1788, c. 51, was enacted, which provides that whenever any mortgagee shall decease before recovery of seisin and possession, the debts due on the mortgage, and the lands, &c., mortgaged by the same, shall be assets in the hands of executors or administrators, as personal estate ; and that they may bring actions for recovery of seisin and possession, and may declare on the seisin of the testator or intestate. And by the same statute it is provided, that executors or administrators shall be seised and possessed of estates so recovered by them, to the use and be- [ * 22 ] hoof of the widow and heirs or * devisees of the deceased; and the same, if not necessary for the payment of debts, shall be distributed as personal estate. And by the fourth section of the statute it is provided that, on judgment for possession, the executors or administrators shall be entitled to receive the money due, if the estate should be redeemed, and are authorized to discharge the estate mortgaged by release, &c.

By this statute therefore, if not before, all authority over mortgaged estates, which have not been taken possession of in the lifetime of the mortgagee, is vested in his executors or administrators, as trustees of the creditors and others interested in the personal estate of the deceased; and they alone can maintain actions upon the mortgage for possession, on condition broken, with a view to foreclose the right to redeem.

Had the mortgagee entered in his lifetime, after condition broken, and died seised and possessed, the case might have been different; as his seisin would descend to his heirs ; although in that case, according to the section of the statute last cited, if the heir received the money, the executor would be entitled to it, ai\d might discharge the mortgage.

If possession have been taken, and the term of redemption expired, before the death of the mortgagee, of course his estate would be absolute, and would descend like other real estate.

It has been objected that, in the case before us, no administrator has ever been appointed ; and, as more than twenty years have elapsed since the death of the mortgagee, none can be appointed, and so the debt will be lost to the estate. If so, it is a case of negligence, for which the law gives no remedy. If the equity of redemption has ever been foreclosed, the heirs may have their action upon the seisin of their ancestor, and will recover the land. But supposing no entry to have been ever made, it is not more hard that the pledge should be lost, than that the debt itself should be irrecoverable.

* The opinion of the learned Judge Trowbridge, in his [ * 23 ] reading on mortgages, published in a supplement to the eighth volume of the Massachusetts Reports, has been pressed upon us in the argument. The principal object of that argument was to refute certain principles, supposed to have been laid down by Lord Mansfield, tending, as Trowbridge thought, to deprive mortgaged estates of their legal qualities. He maintains, with great force of reasoning, as well as by authorities, that a mortgage in fee simple is, at common law, a conveyance of real estate, defeasible only by performance of the condition according to the deed, or by the intervention of chancery afterwards; and in the latter case, that the title remains in the mortgagee, until a reconveyance.

Admitting him to be entirely right in his doctrine, and in its consequences, viz. that estates held in mortgage descend to the heir, that they are subject to the mortgagee’s debts by elegit, &c., yet it is to be considered that, at the time he wrote, no statute existed in the province, making mortgaged estates assets, and directing that they should go to the executor or administrator. According to the common law, it is true, the legal estate would be in the mortgagee, and would descend to his heirs. But chancery considered the heir only as trustee for the executor; and would compel him to release, if payment had been made to the executor, or to pay over to the executor, in case payment had been made to the heir.

But in this commonwealth, there having been no Court competent to the enforcement of trusts, the legislature, in the statute before cited, have enacted the principles which governed the Courts of equity; and have given, by law, to executors and administrators, the rights in mortgages, which in England they had, and might have enforced by process in equity. Since the passing of our statute then, the law with respect to mortgaged estates is changed; so that they do not descend to the heirs, but are to be under the control of the executor [ * 24 ] or administrator, for the purpose * of being distributed among creditors, or between the widow and heirs, as personal estate. In the lifetime of the mortgagee, he has the right to enter and dispossess the mortgagor, or may maintain a writ of entry upon the seisin created by the deed. But until foreclosure, the estate is considered in law to be a pledge for a debt; and on the death of the mortgagee it is to be treated as a debt, in all respects, by the executor or administrator.

As in this commonwealth we seldom see, in mortgage deeds, any provision for the continuance of the mortgagor in possession, until a forfeiture of the estate is incurred by a breach of the condition, a difficulty may arise on the death of the mortgagee, he having entered before condition broken. In such case he may be considered as having died seised of a defeasible estate ; but nevertheless, accord ing to the principles of the statute, the executor or administrator has the right of possession, and ndt the heir. It is the former who must receive the rents and profits, and account for them, and it is he alone, who can dispose of them according to the provisions of the statute .

New trial ordered. 
      
       [There can be no doubt but that at the common law the heir has the legal estate. If the executor bring a bill of foreclosure, he must make the heir a party. The heir may exhibit a bill and have a foreclosure without making the executor a party. If the executor in this case exhibit a bill against the heir, he may pay the money and retain the land, which he holds in trust for the executor to pay the debt; and if the heir receive the money from the mortgagor, it will be decreed that he pay it to the ex ecutor. And if the heir refuse to pay the money, the land will be decreed to the ex ecutor. Powell on Mortgages, 6th English Ed. pp. 666. 790. —Ed ]
     
      
       [Reading of Trowbridge, 8 Mass. 554. —Dewey vs. Van Deusen, 4 Pick. 19. —Demarest vs. Winkoop, 3 Johns. Ch. R. 129. —Ed.]
     