
    Ebenezer W. Cutler versus Gilbert W. Haven.
    A note, and a mortgage deed given to secure it, were handed, with other effects, by A, the administrator of the mortgagee, to B, the guardian of the mortgagee’s heirs, on a settlement, as their property, but the note was not indorsed, and no assignment in writing was made of the mortgage, but a power of attorney was given to B to act in the name of A. This power was not recorded. It was held, that the mortgager or his assigns, if acquainted with the equitable assignment, had no right to tender or pay the mortgage money to A, if such tender or payment was made with a design to injure B and the heirs ; and that a discharge of the mortgage made by A would not defeat the rights of B.
    
      It seemst that the payment should be made to B, and that he might discharge the mortgage by cancelling the deed and giving up the note.
    The expression (t power of attorney ” implies a power under seal.
    This case was assumpsit for use and occupation, and was tiled before Cummins J. of the C. C. P. on the general issue.
    The plaintiff gave in evidence a mortgage deed of the land from G. Brown, and proved that on May 9, 1825, he entered for condition broken, and that after the discharge of a prior mortgage on the same estate, which discharge was made by Samuel Haven, administrator, as hereinafter mentioned, notice was given to the defendant to pay the rent to the plaintiff.
    The defendant proved that he occupied the estate under a lease for years from Joseph Valentine. He also proved that Brown, prior to the mortgage to the plaintiff, mortgaged the estate to Samuel Haven junior, and that Brown’s equity of redemption was sold on execution, and was purchased by and duly conveyed to Haven junior.
    The defendant also offered evidence to show, that Haven junior having died, administration on his estate was granted to Samuel Haven and V. Hemmenway : That in' 1818 they settled their final account in the probate office, and paid over the effects in their hands to Valentine, who was guardian of all the heirs of Haven junior, except one who was under the guardianship of Samuel Haven : That the administrators, in making payment to Valentine, passed into his hands divers promissory notes due to the intestate’s estate, and among them the note of Brown secured by the mortgage, and also the mortgage deed. But it appeared that the notes were not indorsed, and the mortgage was not assigned by any written instrument. The administrators, however, at the time, gave Valentine a power of attorney to act in their names, in order to enable him to realize the full benefit of the effects put into his hands.
    A few months after the plaintiff had taken possession of the land, Valentine entered on and took possession of it by virtue of his power of attorney, for breach of the condition of the mortgage to Haven junior. And Valentine subsequently made the lease of the land to the defendant, by virtue of a power of attorney from all the heirs of Haven junior, they having become of full age.
    The plaintiff proved a tender to Samuel Haven, as surviving administrator (Hemmenway having deceased), of all the money due on the mortgage to Haven junior, and a discharge of the mortgage in the registry of deeds, dated January 19, 1827, by Samuel Haven, as surviving administrator.
    This discharge was attempted to be impeached on the ground that it was fraudulently obtained by the plaintiff, with intent to injure Valentine. And the defendant offered evidence to show that the plaintiff was well acquainted with Valentine’s claims and rights, and that he paid Samuel Haven a less sum than was due on the mortgage ; but the plaintiff offered evidence which tended to prove that the amount deducted from the sum due on the mortgage was on account of a claim which the plaintiff made against one of the heirs of Haven junior, and which was allowed by the administrator.
    The judge instructed the jury, that the acts done by the administrators were insufficient to pass or transfer to Valentine any legal interest in Brown’s morlgage to their intestate ; and that the legal estate remained in the administrators, and the survivor of them ; and that on January 19, 1827, Samuel Haven, the surviving administrator, was the only person who had power to discharge the mortgage, and the tender or payment of the money due thereon was rightly made to him, and that he had a right to receive the money and discharge the mortgage, and that if the plaintiff had acted otherwise, he could not have protected his own interest in the mortgaged premises.
    The judge also instructed the jury, that as the legal estate in the mortgaged property was in Samuel Haven, as surviving administrator, if the discharge made by him was obtained by the plaintiff fairly and without fraud done or intended towards Sam-uel Haven, it was valid in law, notwithstanding the plaintiff might have intended thereby to defeat Valentine’s equitable interest in the mortgaged property, and although Valentine had thereby been defrauded of his interest in it, and notwithstanding the plaintiff, having a full knowledge of the transactions between Valentine and the administrators, and oí Valentine’s claims, procured the discharge of the mortgage by paying Haven a less sum than the plaintiff knew was due on it.
    To these opinions of the Court, the counsel for the defendant excepted.
    
      Oct. 51\
    
    Menick, in support of the exceptions.
    The note having been assigned by the administrators of the promisee, could not be defeated by them. Jones v. Witter, 13 Mass. R. 304; Dunnv. Snell, 15 Mass. R. 581. Valentine, then, having an absolute right in the nóte, was vested by his power of attorney with a right to enter on the mortgaged land ; and this power, being coupled with an interest, was irrevocable. Com. Dig Poiar, A; Osgood v. Franklin, 2 Johns. Ch. R. 1. The tender should have been made to Valentine, and if Haven, the surviving administrator, on being notified, had refused to release, it would have been a good cause for a bill in equity. The administrator, by his fraudulent release, could not cut off his assignee from his rights. Brown v. Maine Bank, 11 Mass. R. 153.
    
      Newton and Lincoln, contra.
    
    The transactions between Valentine and the administrators did not transfer the legal estate in the mortgaged land to him ; it still remained in the administrators. Parsons v. Welles, 17 Mass. R. 425; Warden v. Adams, 15 Mass. R. 233; Scott v. M'Farland, 13 Mass. R. 309. The power of attorney given to Valentine cannot affect the case, as it was not produced at the trial,- and it does not appear that it was under seal. Besides, the power, not being recorded, could not operate as a notice to the plaintiff of Valentine’s claim. Taylor v. M'Donald, 2 Bibb, 420; Dunham v. Dey, 15 Johns. R. 555; Johnson v. Stagg, 2 Johns. R. 510; Chandos v. Brownlow, 2 Ridgway, 422, cited in Pow. on Mort. 631; Phillips v. Redhill, cited in Hitchcox v. Sedgwick, 2 Vern. 160. The tender was properly made to the administrator, notwithstanding the equitable interest of the heirs whom Valentine represented. Scott v. M'Farland, 13 Mass. R. 309; St. 1788, c. 51; 1 Pow. 214. Haven, the administrator, was the only person of record who could discharge the mortgage ; it would be unreasonable to hold the plaintiff bound to find out who were equitably interested. The plaintiff was bound to pay Haven, in order to protect himself. Whatever the transactions between the plaintiff and Haven were, the heirs are not injured, for they have a remedy on the administration bond. Even if the plaintiff knew of Valentine’s equitable claim, he was not bound to look after the appropriation of the money by the administrator. 1 Pow. on Mort. by Rand, 219. The burden of proof is on the defendant. 2 Pow. on Mort. 631.
    
      March term 1830
   Parker C. J.

afterward drew up the opinion of the Court. A new trial is granted in this case, on account of a misdirection of the judge in his charge to the jury. Notwithstanding there was no legal assignment of the mortgage deed by the admunistrators of Haven junior to Valentine as guardian to the children of Haven junior, there was, by the delivery of the deed and the note collateral to it, with a power of attorney to enable him to enforce the payment of the debt, an equitable interest in Valentine, which could not be defeated by any fraudulent transaction between the plaintiff and the surviving administrator. That the payment to that administrator, and his discharge of the mortgage on the record, were fraudulent against Valentine and his wards, cannot admit of a doubt, if Cutler-knew of the possession of the deed and note by Valentine, and the purposes for which they were placed in his hands ; and it was this knowledge which was proposed to be proved by the defendant; but permission to do it was refused by the judge, on the ground, that if Haven, the administrator, was not defrauded, the transaction was legal. But Valentine, the guardian, was the only person who could be defrauded. The money belonged to him tn trust for his wards, and the payment, if made to the administrator, should not have been made without notice to Valentine and his consent thereto. It is said that Valentine could not have received the money, and could not have discharged the mortgage. But we think that, holding the mortgage deed and the power of attorney, he might have received the debt and delivered up-the note and cancelled the mortgage.

It is suggested that the power of attorney might not have been by deed, and was not recorded. But the very terms power of attorney import a deed, unless the contrary is shown, and the knowledge of the plaintiff superseded the necessity of a registry.

Supposing the facts stated and offered to be proved, to be true, there was unquestionably collusion between the plaintiff and Haven, the administrator, which prevents any legal effect of the transaction, to the prejudice of the heirs of Haven junior. If the payment and discharge are held valid, then a most gross fraud is practised, and if the heirs should seek their remedy against the administrator and his sureties, upon the bond, the sureties would suffer by that fraud. It is more conformable therefore to justice, that the payment should be held void as against Valentine, and the mortgage still in force ; and then, if the money paid to the administrator is lost, the loss will fall upon him who ought to bear it. The defendant therefore would continue the lessee of Valentine, the entry upon him would be void, and so the action for rent would not be maintained.

A new trial is therefore granted. 
      
       See 1 United States Dig. tit. Assignment ch. 111. & IV.; Southerin v. Mendum, 5 N. Hamp. R. 430.
     
      
       See Story’s Comm, on Agency, 3.
     