
    Adam Tunno vs. Chris. Happoldt, Adm’r of Jno M. Happoldt.
    A Mortgage upon cei-tain property, to secure a note (not under seal,) will not, under our administration law, give such creditor a priority, as inthc nature of a deed, to simple contract creditors.
    Tried before Judge Richardson, at Charleston, in January Term,1822.
    THIS was an action of assumpsit, brought by the holder of two promissory notes, against the representative of John M. Happoldl, the maker. The administrator of John M. Happoldl obtained leave of the court to file the plea of plena adminislravit prater, in addition to the general rule, and the question arose upon one item in the administrators accounts, viz: Whether a certain instrument in writing was to be ranked, in the legal order of payment of intestates debts, among bond creditors or among simple contract creditors.
    By consent of the counsel on both sides, a special verdict was found by the jury in the following words, viz : £C And as to the defendants second plea ofplene administravit prater, we find that the said John M. Happoldl departed this life, leaving no judgments or other debts of higher decree against him, but leaving one bond to the Union Bank, and one obligation or sealed instrument of mortgage and covenant to Thomas Ogier, and simple contracts to an amount far exceeding the assets of his estate. That the administrator of John M. Happoldt has paid off both the aforesaid bonds or obligations, and charged them on his accounts, and has in hand the sum of $784 49, to be divided in average proportion among the simple contract creditors. If the court should be of opinion that the aforesaid sealed instrument to Thomas Ogier is an obligation, and to be preferred to simple contract creditors, we finfi for the defendant on his second plea of plene administravit prater. But if the court should be. oí opinion, that the said instrument to 'Thomas Ogier, is to be paid in average and proportion only with the simple contract creditors, then, we find for the plaintiff.”
    By consent of parties, the court_ below, without argument, pronounced judgment in favour of the defendants plea oíplene administrara, with leave to appeal. And the present motion was made to reverse the decision of the court, upon the ground, that the said instrument should be ranked in the class of simple contracts only.
    
      Gadsden, for the motion.
    
      Ford fy DeSaussure, contra.
   Mr. Justice Richardson

delivered the opinion of the court:

The claim of Mr. Ogier was by simple contract, i. e. by a note. And the question is,' can the mortgage deed change the character of the note, or give it a preference to other simple contract debts under the administrators law.

I cannot perceive any reason in supposing the simple contract debt changed by the mortgage, That deed gave a particular lien upion certain property, but here its object and intent terminated, and otherwise left the note as it stood before, still a simple contract. The postea must, therefore, ,be delivered to the plaintiff, with leave to enter up judgment upon the special verdict.

Justices Colcock, Nott, Gantt and Johnson, concurred.  