
    William Wright vs. Nathaniel R. Eaves and J. R. Harris, administrator. Nathaniel R. Eaves vs. William Wright and others.
    Interest— Presumption — Satisfaction—Mortgage— Purchaser — Assignment—Pleadings—Parties— Cross Bill — Surety.
    On a bond conditioned to pay the -principal sum in three equal annual instal-ments, with interest from date, payable “annually as it becomes due;” the interest annually accruing after the last instalment fell due, as well as that then and before due, bears interest.
    Where from payments made by the debtor or his representative, or other cause, the mortgage debt will not be presumed satisfied as between debtor and creditor, from lapse of time, no presumption of release or satisfaction of the mortgage will arise in favor of one holding under a purchaser from the mortgagor, although twenty years have elapsed since the mortgagor conveyed the premises and delivered possession to the purchaser.
    An assignment of the bond carries with it the mortgage given to secure payment of the bond.
    The mortgagor, or purchaser from him, must pay the whole debt to the assignee, even though the consideration of the assignment was a note, or a sum less than the amount of the debt.
    To a bill for foreclosure against a grantee who holds under an absolute conveyance from the mortgagor, it, is not necessary to make the mortgagor, or if he be' dead, his representative, a party — the plaintiff may pursue the grantee alone.
    The purchaser from the mortgagor is not bound by a judgment against the mortgagor for the debt; he may show that the amount due is less. Per Ward-law, Ch.
    The defendant cannot, by cross bill, bring before the Court new parties and new matters for litigation; he must proceed by original bill.
    To a bill to make the surety of a deceased administrator liable for the devastavit of his principal, the representative of the administrator is a necessary party.
    BEFORE WARDLAW, CI-L, AT CHESTER,
    JUNE, 1855.
    This case will be understood from the circuit decree, which is as follows:
    
      Wardlaw, Ch. On November 24, 1826, Robert Kennedy-executed a bond to Pamela Gunning, in the penalty of $5,000, with condition to pay $2,300 at the times and in the manner following, namely: $766 66f, on November 24, of each of the years 1827, 1828, and 1829, and to “pay interest on-said sum of $2,300 from this date; and pay said interest annually as it becomes due;” to secure the payment, he mortgaged to her in fee, a lot of land in the village of Chester, which mortgage was duly registered on November 28, 1826; John Dunovant is surety to the bond, and resides in Chester, but as he is insolvent, he has not been made a party to this litigation.
    Robert Kennedy remained in possession of the morgaged premises until July 13, 1831, when he conveyed the same to John Kennedy; the latter paying the price to Robert Robinson, who had bought the lot from the mortgagor, but had not taken title. John Kennedy conveyed with general warranty to G. W. Coleman and wife, November 30, 1836; and they conveyed January 26, 1846, to N. R. Eaves, who is now in possession.
    Robert Kennedy paid on said bond $200, April 20, 1828; and $250, September 29, 1829, and died intestate in 1832, leaving the balance in arrear. James F. Woods became administrator of his estate, and December 31, 1832, gave bond to the Ordinary for his faithful administration, in the penalty of $15,000, with John Dunovant and Robert Robinson as sureties. Before full administration, in 1833-4, James F. Woods died, leaving a solvent estate; and his brother, William Woods, afterwards became administrator, de bonis non, of Robert Kennedy’s goods and credits, giving an administration bond, dated May 5, 1834, in the penalty of $10,000, with Robert Robinson and Amzi Neely as sureties. The latter surety afterwards removed to Savannah, Georgia, and he now resides there in possession of a good estate. William Woods has also died, and J. L. Harris is now administrator of Kennedy’s estate, unadministered, but he has not come into possession of any assets of the estate. Robert Robinson died in 185 — , leaving an ample estate, of which J. L. Harris, Perry Gill, and Win. H. McOorkle are the administrators.
    At Fall Term, 1841, of the Court of Common Pleas, for Chester, Pamela Gunning recovered judgment against William Woods, administrator of Robert Kennedy, for $1,920 70, as the balance due upon said bond, (partial payment having been made,) besides interest and costs. The judgment and the assessment of the Clerk on which it is founded make no mention of annual interest, but the execution fi. fa. directs the sum aforesaid with annual interest thereon, from April 1, 1841, and $24 37 for costs, to be levied (which seems very irregular) of the estate of William Woods. On this execution, payments were made by Robert Robinson, to the Sheriff, to the aggregate of $1,470 in the years 1842-3-4. On May 7, 1844, Pamela Gunning, on the back of the fi.fa., assigned the execution and the balance of debt and interest remaining due to William Wright, but without recourse to her. The mortgage was delivered to the assignee, but not assigned in writing. According to the calculation of the parties to the ■'assignment, as mentioned therein, the balance which would be due on July 1, 1844, was $785, or, as the assignee admits that $300 were paid to him on that day, $485.
    The plaintiff filed the former bill in the caption named on May 28, 1852, for foreclosure of the mortgage given to secure the debt assigned to him; and the defendant, N. R. Eaves opposes the foreclosure by many defences.
    This defendant’s plea of the statute of limitations has been already considered and overruled by the Court of Appeals, Wright vs. Eaves, 5 Rich. Eq. 81. He still insists, however, on the analagous defence, that the bond must be presumed to be satisfied from the lapse of time. The judgment of the Court of Common Pleas in 1841, and the payments towards the debt down to 1844, would be quite conclusive against this defence, if it were set up by the mortgagor or his representatives. And a purchaser, with notice from the mortgagor, as the defendant is by force of the registry of the mortgage, has no superior equity, and is in no better situation than the mortgagor himself! Even where the mortgagor or his vendee with notice has the legal title, it is subject to the trust of paying the debt with lien on the land. He has merely the equity of redemption, and can be rid of the incumbrance, only by paying the debt or showing its payment by positive or presumptive proof. Nixon vs. Bynum, 1 Bail, 148; Hughes vs. Edwards, 9, Wheat, 489.
    The defendant urges that the plaintiff is assignee of the debt only and not of the mortgage, as there has been no express assignment of the mortgage. In Equity, the debt is the principal thing and the mortgage a mere accessory security; and the assignment of a debt carries with it all the rights and securities of the assignor. By our statutes the assignee of a judgment or a bond for money may prosecute any necessary suit thereupon in his own name, and having thus the legal title he is with stronger reason subrogated to all the securities of him from whom he derives title. It was held in Jackson vs. Blodget, 5 Con. 202, that if the obligor of a bond secured by a mortgage after assignment of the bond and notice to him of the assignment, although the mortgage is not delivered to the assignee, pay the debt to the mortgagee and take a discharge of the mortgage, this is void as to the assignee. So, in Green vs. Hart, (l John. 580,) the endorsement of a negotiable note secured by a mortgage (and with us a bond is in the same category,) and a delivery of the mortgage to the indorsee without any written assignment, were held to constitute an assignment of the mortgage. (See Jackson vs. Hart, 3 John. Ca. 322. 11 John. 534. Miles vs. Gray, 4 B. Monroe 517. Betry vs. Heebner, 1 Penn. 280; Crafts vs. Webster, 4 Penn. R. 255; Dick vs. Maury, 9 S. and M. 448; Henderson vs. Herrod, 10 S', and M. 631.)
    In the argument for defendant some'reliance was put on the fact, that the plaintiff paid for the debt assigned to him in the note of Edward H. Gunning, and not in money. It does not appear that this note was not at any time convertible into cash. Tt served the purposes of the parties as well as money would have done; and the assignor and her representatives make no complaint as to the assignment. No matter at what price the balance of the debt was purchased, it is indifferent to the defendant whether' the plaintiff paid too much or too little, as neither alternative increases or diminishes the extent of the lien on his land. His land is encumbered for the actual balance and, no more. If the purchaser of the mortgage debt pay for it a less sum than the amount due, he is still entitled to the full benefits of his purchase. Darcy vs. Hall, 1 Vern. 49; Phillips vs. Yangham, 1 Vern. 326 ; Jlscough vs. Johnson, 2 Vern 66. As Lord Cowper says, 1 Salk. 255, since he runs the hazard of a loss, he ought to have the benefit of the gain.
    Finally it is insisted that as personalty is the primary fund for the payment of debts, the plaintiff should be required to call the sureties of the former administrations of the principal obligor to account before pursuing the land for which defendant has honestly paid a full price. In fact the existing representative of the obligor is a party defendant, and seems to have no assets. The mortgagee or his assignee is not bound to involve himself in an intricate account of the personalty of his deceased debtor; and if the mortgagor has conveyed his equity of redemption absolutely, is not bound to make any one defendant except the grantee. He has the election to resort to the personalty, or to pursue his real security, leaving the owner of the equity of redemption to his remedies for reimbursement. Story, Eq. PI. 175, 197.
    At the July sitting of this Court, 1852, it was referred to the Commissioner to enquire and report as to the principal and interest due to the plaintiff on the mortgage debt set forth in the pleadings; equities reserved. The Commissioner reports $203 75 with simple interest from July 1, 1844, to be the balance of the debt. He attains his conclusion by compounding the interest until November 24, 1829, when the last instalment was due, and allowing only simple interest after-wards. The Clerk of the Common Pleas, in making the assessment on which the judgment of Gunning vs. Woods, administrator of Kennedy, in 1841, was based, seems to have compounded the interest at annual rests to the time of the assessment. The plaintiff excepts to the Commissioner’s mode of computing the interest on the grounds that by the terms of the condition of the bond, there was an agreement of the parties for an indefinite extension of credit, and for the payment of interest on the principal sum and on the interest annually accruing, until the whole be paid; and that the defendant is concluded as to the sum of the debt, by the judgment of 1841. A third exception contested some of the credits allowed by the Commissioner, but this was substantially abandoned ; at least it was not elucidated at the hearing, and no argument was made on the exceptions except as to the interest.
    So far as the mode of computing the interest depends on the words of the bond, the Commissioner is conclusively sustained by the case of O’Neall vs. Sims, 1 Strob. 115. It is impossible to distinguish between that case and the case under discussion. If the judgment of 1S41, were in my opinion conclusive on the present defendant, as to the balance of the debt then adjudged to be due, I should still hold, that simple interest merely accrued afterwards, for there is no judgment for annual interest. I suppose that Woods, the defendant in the judgment representing the estate of R. Kennedy, would not be concluded beyond this extent; and that the present defendant is-not estopped from showing mistake in the judgment as to the amount of the mortgage debt actually due. The mortgage was to secure the debt, not the judgment, and the mortgagor had conveyed his equity of redemption long before the judgment against his representative. The owner of the land was no party to the judgment, and had no right to intervene in the litigation, for the extent of the lien was not directly in question. The issue was as to the extent of the liability of the general estate of the obligor, subject to the administration of Woods, and not as to the liability of estate previously transferred. On an assignment of mortgage, without the concurrence of the mortgagor, the assignee standing in the place of the original creditor, is subject in all respects to the libe equities and settlement of accounts as the mortgagee would be, and the mortgagor is not bound by the amount appearing due on face of the mortgage^ Macclesfield vs. FiUon, 1 Vern. 169; Matthews vs. Walwyn. 4 Ves. Jr. 118; Williams vs. Lowell, lb. 3S9; Bradioell vs. Catchpole, 3 Swan. 79 n ; Chambers vs. Goodwin, 9 Ves. 254. It is not absolutely necessary that the mortgagor should be made a party to a simple transfer of a mortgage, but his concurrence is desirable as exhibiting his admission of what sum remains unpaid; otherwise according to Lord Loughborough’s view in Matthews vs. Walwyn, the assignee will be liable to be defrauded in paying too much to^ the mortgagee, as the assignee is entitled only to the sum actually remaining due upon the mortgage. The grantee of the mortgagor before assignment of the mortgage is entitled to more favor and protection than the mortgagor himself, as he is liable to be defrauded by the collusion of the mortgagor and the assignee of the mortgage. Estoppels, against the truth of the case and the correction of mistakes, are so odious, that'I shall treat the judgment of 1841, so far as the present defendant is concerned? as res inter alios acta. Besides the matter may be well considered as adjudged by the order of reference.
    The defence of the defendant and the exceptions of the plaintiff are overruled.
    It is ordered and decreed, that unless the defendant, N. R. Eaves, payto the plaintiff, William Wright, the sum of $205 75, with interest thereon, from July 1, 1844, and the costs of this suit, on or before the first day of November next, the said defendant be forever barred and foreclosed from his equity of redemption in the mortgaged premises described in the pleadings, and that the Commissioner of this Court proceed to sell the said premises for cash, at public auction, on the sale day in January next or some succeeding sale day, after twenty-one day’s advertisement of the sale; and pay tothe plaintiff from the proceeds of sale, the principal and interest of his said debt, and to the persons entitled, the costs of this suit, and pay the overplus to defendant.
    The latter bill in the caption named, filed May 25, ]853, is styled a Cross bill, but with little claim to such designation. It seeks to bring before the Court, new parties and new matters of litigation, not in the original suit; and this is forbidden by the procedure of the Court. It was clearly open to demurrer for this cause, but defence was not made in this mode. Controversies in Court would be interminable, if new issues to any extent might be introduced under the plausible cover of cross bills. I have already adjudged the matters suggested in this second bill so far,as they constituted defence to the original suit, and that is the main purpose of a cross bill; but it seems unreasonable, that the plaintiff in the original bill should be delayed until the plaintiff in the soi-disant cross bill should be able to adjust the relative liabilities of himself and third persons. Story Eq. PI. 631; Galatian vs, Erwin, Hopk. 49; 8 Con. 561; 2 Mad. Ch. 429; Mitf. PI. 64; Coop. Eq. 85. ''
    This is in fact an original bill for relief. Its main end is to subject the estate of Robert Robinson to antecedent liability to the claim of the assignee of the mortgage and it proceeds upon the dogma that the personal estate of the obligor is primarily liable for this debt — and that this personal estate has been wasted by the first and second administrators, James F. Woods and William Woods, of both of whom Robinson was surety. The proof offered of devastavit is that in a suit in this Court, by John B. Kennedy and the other heirs at law of Robert Kennedy, against William Woods, administrator de bonis non of Robert Kennedy, and administrator of James F. Woods, the Commissioner of this Court on August 24, 1837, submitted a report, confirmed by the Court that there were funds in the hands of the administrator sufficient to pay this mortgage debt to Pamela Gunning, set down in the report at $2,895 30, and all the creditors of the intestate Robert Kennedy and leave a balance of $433 10, distributable among the heirs of Robert Kennedy. But to this bill, the creditors were not parties, and it seems by the returns of the administrator, to the Ordinary, that he afterwards paid moneys to creditors not enumerated in said report. The Commissioner in his report does not distinguish between the transactions of the successive administrators, James F. Woods and William Woods, and reserves any right of reclamation by William upon James. It further appeared by the testimony of S. McAlily, that the heirs of Robert Kennedy, sold some of his real estate in 1837, for $100, which is now worth eight or ten times that price.
    With all this matter, I have already determined that the assignee of the mortgage had no necessary connection of interest ; and that he might pursue his lien upon the land without mixing in the accounts of the personalty. As to him the bill is ordered to be dismissed.
    As to the representatives of R. Robinson, the new parties, to the second bill, while I have a strong suspicion from the general aspect of the case that Robinson’s estate is liable over to Eaves, as Robinson was the original purchaser from mortgagor and was surety on the administration bonds of both the first two administrators, and as he paid the moneys on the execution of Gunning vs. Woods, I do not feel safe in adjudging any thing in the state of parties before the Court.
    Robinson’s administrators demur because representatives of James F. Woods and Wm. Woods are not before the Court, and the demurrer must be sustained, as it is surely important to the adjustment of liabilities to ascertain which of these administrators committed a devastavit, if any were committed. It might turn out, if these parties were before the Court that both administrators had fully and legally administered the assets within their respective control. It may be that Duno-vant and Neely are necessary parties.
    If the plaintiff, Eaves, had paid the debt to the assignee of the mortgage, he would have had ample remedy at law against those who were liable over to him; and his right to come into this Court in anticipation of such payment, is not clear. I could not íetain this cross bill, so called, without subjecting the plaintiff to costs; and I do not perceive that he suffers any further injury by dismissing the bill.
    It is ordered and decreed that the cross bill, so called, be dismissed with costs, without prejudice to the plaintiff, to prosecute his claims here or elsewhere, as he may be advised.
    The plaintiff appealed on the grounds:
    1. Because the Chancellor held, annual interest was not recoverable on Robert Kennedy’s bond after the 24th November, 1829, and it is respectfully submitted he erred therein; that the parties to said bond, by its terms, agreed annual interest should be paid, until the whole debt and interest were satisfied and paid — and the Commissioner’s report as to the amount due on said bond should be amended, by the allowance of such annual interest.
    2. Because the judgment of the Court of Common Pleas, entered Fall Term, 1841, is conclusive as to the amount then due, not only on the personal representative of Robert Kennedy, but also the defendant holding the mortgaged premises — and the complainant is entitled to enforce the lien of the mortgage for the amount so adjudged to be due, and accruing interest.
    The defendant, N. R. Eaves, appealed on the following grounds:
    1. Because the case made by the original and cross bill was such that the Chancellor, either on the original or cross bill, should have ordered and decreed that the complainant, William Wright, should be compelled to look in the first instance to the peisonal estate of Robert Kennedy,.for the payment of the mortgage debt, as the personal estate is the fund, primarily liable for the payment of debts of all kinds.
    
      2. Because from the case made, it clearly appeared that Wm. Wright had .two funds, to which he might look for the payment of his debts, to wit: The personal estate and the mortgaged premises ; and therefore on a well recognized principle of equity, he should have been ordered to look to that one that would save and indemnify N. R. Eaves, as prayed for in his cross bill.
    3. Because the complainant, in original bill, cannot maintain a suit to foreclose the mortgage in his own name, as the mortgage was not assigned to him ; and the assignment of the execution of Palema Gunning vs. William, Woods, administrator, was not sufficient for that purpose.
    4. Because the estate of Robert Kennedy owned other lands which were liable for this debt, to wit: the Dr. Lee lands and other lands, which his heirs at law have sold; and therefore the Chancellor should have ordered a reference to ascertain and report what lands and other property did in fact belong to Kennedy’s estate.
    5. Because the plaintiff’s demand, as it appears before the Court, is a stale claim, and is, and was before the filing of the original bill, barred by lapse of time, as the judgment against William Woods, as administrator of Kennedy, and the payments thereon, are res inter alios acta, and cannot affect the rights or interests of N. R. Eaves, in whose favor a conveyance may now be legally and equitably presumed.
    6. Because the laches of the complainant in enforcing his mortgage, permitting as he did the estate of Robert Kennedy to be distributed, and withholding action on his mortgage, until all the parties having knowledge of the facts have died, leaving the said Eaves without means of defence against said mortgage or of indemnity against other parties primarily liable, has debarred the complainant of the equitable relief prayed for in- his original bill, until he shall have exhausted all means of enforcing' his debt against the estates of Robert Kennedy, and of his administrators.
    7. Because if the presumption of satisfaction of said mortgage be not a bar to complainant’s bill, it is sufficient under the facts of the case to put the complainant to the proof, that the defendant had actual knowledge of the fact, at the time he became the purchaser of the lot for valuable and lawful consideration, that the debt was still unpaid.
    8. Because the cross bill of N. R. Eaves should have been sustained, the same being well filed, and tending to avoid a multiplicity of suits, and to do equal and exact justice and equity to all parties in interest.
    9. Because the case involves a question of title to lands, which this Court has not the power to try; and the Chancellor should, if the bill was retained, have ordered an issue at law to try the question whether the title to the house and lot was not vested absolutely in the defendant, N. R. Eaves.
    
      Williams, for plaintiff,‘
    cited, on the question of interest, Gibbes vs. Chisolm, 2 N. and McC. 38 ; Singleton vs. Lewis, 2 Hill, 409; O’Neall vs. Bookman, 9 Rich., 80; on defendant’s first and second grounds of appeal, Coop. Eq. PI. 39 ; Story Eq. PI. § 75, 196, 197; on his third ground, Crosby vs. Bowman, 2 Day. 425 ; Austin vs. Burback, 2 Day. 474; and on his fifth, sixth and seventh grounds, Thayer vs. Cramer, 1 McC. Ch. 395; Nixon vs. Bynum, 1 Bail. 148; Hughes vs. Edwards, 9 Wheat. 491; Heyer vs. Pruyn, 7 Paige, 465 ; Perkins vs. Pitts, 11 Mass., 125; Newman vs. Chapman 2 Rand. 93; Tucker vs. Hunt, 6 Rich. Eq. 183; CooteonMort. 452; Bowling vs. Ford, 11 Mees, and W. 329; Hodle vs. Healey, 6 Mad. 181; Price vs. Copner, 1 S. and S. 347; Han-sard vs. Hardy, 18 Ves. 455; 2 Ves. Jr., 84; 5 Bro. P. C. 281; Hil. on Mortgage, 17; Yates vs. Humbly, 2 Atk. 358; Baker vs. Morris, 10 Leigh, 384; King vs. Minford, Sax. 274; Aylet vs. King, 11 Leigh, 486; Nelson vs. Carrington, 4 Mass. 332; Story Eq. § 1028; Thayer vs. Davidson, Bail. Eq. 412; Smith S¡- Outtino vs. Osborne, 1 Hill, Ch. 342; Drayton vs. Marshall, Rice, Eq. 374 ; Invack vs. Edwards, 1 Hoff, Ch. 282.
    
      Thomson, Bellinger, contra.
   ■ The opinion of the Court was delivered by

O’Neall, J.

To two points in these cases has the attention of the Court of Errors been directed. The first is to the computation of interest; and the second, whether the lien of the mortgage has been released or removed by lapse of time?

1. We think the mode of computing interest was properly settled in O’Neall, guardian, vs. Bookman, 9 Rich. 90; and as equity follows the law, it can be hardly necessary to say anything more on this point. Indeed the full opinion of my brother Withers, in that case, on a contract like this, for the payment of interest annually, ought to supersede comment. But as this matter has been discussed in the Court of Errors, and as there still is variety of opinion among some of the members, it may be well enough to say that a majority are entirely satisfied with the decision in the case above alluded to.

The contract to pay interest annually is the same thing as if the party at the end of each year promised as much money as would be equal to the interest, which might then be due. In such a contract, there can be no doubt, interest must be computed on the sums thus annually set down as due. Although this may compound the interest, which is not a direct legal consequence of either the loan or forbearance of money; yet I think parties may make just such a contract without its being obnqxious to the charge of usury. For it is at last no more than taking seven per cent, interest on money forborne. For the interest on such a contract due at the end of the year is really so much forborne for another year. I agree entirely with what was said by one of the Chancellors — that too much interest is charged and exacted in the accounts of trustees in equity. But it is to be remembered that they make no such contract as that before the Court. They are simply custodians of the funds in their hands, which they often keep for months and years before they can invest. Still they must pay interest, and sometimes in that Court accounts are made up with annual or semi-annual rests. If that be right and free from usury, how can it be said that a decision directing interest on interest to be annually computed on a contract stipulating for the payment of interest annually, is usurious. But I forbear; the point has been decided, and so it must remain.

3. It has been decided by the Court of Appeals in Equity, in this case, that the defendant could not rest on the statute of limitations. That decision is not now brought before the Court of Errors, but it can do no harm to say that I think it was decided right. For neither the defendant Eaves, nor any one of those under whom he claims, had ten years adverse possession of the premises. The several possessions cannot be linked togetheras was decided in King vs. Smith, 10 Rice. If Eaves had, fortunately for him, been in possession for ten years, after the case of Mitchell vs. Bogan, decided December Term, 1857, (and which ought to have been in the 1st No. of 11th Richardson,) I should not have hesitated at law, to have given him the benefit of the statute of limitations. For that case declares that the mortgagee, as against third persons, stands as at common law, and may maintain trespass to try titles. It may be in equity, that as the mortgage is on record, he may be charged, as a trustee, and thus prevented from relying on the bar of the statute. But that is not necessary to be now decided. The question is, does a presumption from lapse of time in this case arise that the lien of the mortgage has been released or removed ? There is no doubt that the debt, to secure which the mortgage was given, remains. For the presumption is rebutted by payments and the .judgment at'law. As a general rule, the security (the mortgage) ought to be regarded as co-existent with the debt. If there were any facts which would go to show a separation, I would readily admit the force of a presumption that the lien of the mortgage was released, but that is not the case here ; for when the debt was assigned to the complainant, Wright, the mortgage was delivered to him, as accompanying the debt. If the original mortgagor was before the Court, could he pretend that the mortgage was released when the debt subsisted ? I do not perceive how he could legally rest on any such presumption from lapse of time. The defendant Eaves, claiming under him, can be in no better situation.

The answer of the defendant under the decree of December, 1852, makes a statement which shews that there can be no such a thing as a presumption from lapse of time that the mortgage lien has been released. For he tells us that in 1837, August, not more than fifteen years before the bill was filed, in a report in a case between J. B. Kennedy et at., heirs at law of the mortgagor, Robert Kennedy, vs. William Woods, administrator, et al., this very debt, to secure which the mortgage was executed, was set down as subsisting, and provision was made for its payment. But still it is clear it was not paid. It must be recollected that this was within eleven years of the creation of the debt and execution of the mortgage. There could be no presumption of either payment or release then. If nothing afterwards had been done, then, indeed, the presumption would have attached. But at Fall Term, 1841, still within less than twenty years from the creation of the debt, judgment was recovered at law on the bond, and payments were made on the judgment in ’42, ’43, ’44, to the amount of $1,470; not by the administrator of the obligor, but by Robinson, who had purchased the mortgaged premises, but had not taken titles, the purchase money being paid by John Kennedy, who took the titles, and under whom the defendant claims; this was clearly an admission of the subsistence of the legal lien of the mortgage to within six years of the defendant’s entry, and that would seem to be an end to the supposed presumption. The defendant’s cross bill, too, shews that he does not rely so much on the supposed presumption of release as he does that the party complainant, without resorting to him, might recover his debt from the sureties of the administrators of Kennedy; and in this position, which admits the existence of the debt and of the mortgage too, I think he virtually admits everything necessary to establish the complainant’s rights.

I do not understand a presumption from the lapse of twenty years to be irrebuttible; but that it is evidence that all things have been done according to the usual conclusion from such long silence and acquiesence, until a contrary belief is created by facts inconsistent with it. Stover & Barnes vs. Duren, 3 Strob. 448; McQueen vs. Fletcher, 4 Rich. Eq. 160-1—2. I am satisfied that the facts of payments both before and after the recovery at law, the judgment at law, the delivery of the mortgage to the complainant, and the statements and defences of the defendant in his answer and cross bill, are utterly opposed to the presumption of release or removal of the lien of the mortgage.

With the judgments which we have expressed on the two points considered, the case is remanded to the Court of Appeals in Equity, to make such order as may conform thereto, and give effect to the complainant’s rights.

Withers, Glover, and Munro, JJ., concurred.

Whitner, J. I concur on the subject of interest with the foregoing judgment.

Johnston, Ch. I concur in the result of so much of this opinion as relates to the subject of interest.

Wardlaw, Ch. I concur as to the principal point concerning the presumption of release or satisfaction. I dissent on the question of interest.

Dunkin, Ch.,

dissentiente. The defendant, and those under whom he holds, have been in the actual, exclusive possession of the premises, claiming it as their own, for more than twenty years consecutively, prior to the institution of these proceedings. In Riddlehoover vs. Kinard, 1 Hill, Ch. 376, itis stated that after twenty years’ possession, the Court will presume a grant from the State, payment of a legacy, ouster of a tenant in common, satisfaction of a mortgage, or almost anything which is necessary to secure the possession and quiet the title. In Watkins vs. Willison, 3 Peters, 43, the doctrine was held to apply as between the original mortgagor and mortgagee. In order to give effect to this presumption, it was ruled in Rogers vs. McLeod, 2 Rich. 22, and repeated in Thomas vs. Peake, 7 Rich. 355, that the possession of the several successive alienees may be tacked. The language in the latter case is: “The fact of possession for more than twenty years in the various persons successively occupying the land, though not for that time in any one, is enough to raise the presumtion of a grant.”

So that to entitle him to the benefit of this presumption, the defendant is regarded as having become the purchaser in 1831, and having held possession from that time. After twenty years the presumption is absolute and requires no circumstances to support it. After that time the onus of proof is on those who seek to repel the presumption. As'between the morgagor and mortgagee, as between debtor and creditor, an acknowledgment of the debt, as it will repel the presumption of payment, will preserve the lien of the mortgage. But as between the mortgagee and the alienee of the mortgagor, no debt exists. If the mortgaged premises prove insufficient, no one pretends that the alienee of the mortgagor is liable for the deficiency. The mortgagee had a lien upon the premises and nothing more. After twenty years possession by the alienee, this lien is presumed to be satisfied, although the debt may still be a subsisting demand, as between the debtor and creditor, mortgagor and mortgagee. This may be illustrated by a transaction of very common occurrence. A bank, or any other creditor, holds a mortgage of ten lots in the city of Charleston to secure payment of a debt. The debtor, desirous of selling one of the lots, in order to perfect a title, procured a release from the bank of the lien on this lot, either in consideration of receiving the purchase money, or because the bank is satisfied with the security of the remaining nine lots, which are still subject to the mortgage. As between the bank and the debtor the debt subsists, but the lien of the mortgage on the tenth lot is released and gone. Now, after an uninterrupted possession of twenty years by the purchaser of the tenth lot, the law presumes this release on the part of the bank, although no proof of an actual release can be produced; nay, although the Court may believe that no such release was, in fact, executed. If the defendant, in 1831, had executed a mortgage of his own land to Pamela Gunning to secure the bond of Robt. Kennedy, and no proceeding were had for more than twenty years, a release of the lien would be presumed, although as between the creditor and the principal the debt may be preserved by recent acknowledgments. (Even if the defendant had become surety on the bond, after a lapse of twfenty years, and no acknowledgment on his part, he is entitled to the benefit of the presumption, notwithstanding intervening acknowledgments on the part of his principal.) Some of the decisions arising out of the peculiar provisions of the Act of 1791, have been the subject of criticism, as will be seen from the judgment of Chancellor Harper in Thayer vs. Davidson, Bail. Eq. 412. But the only case cited from our books to preclude the defendant from the protection afforded by lapse of time, is Nixon vs. Bynum, 1 Bail. 148. Nor is that decision necessarily inconsistent with these principles when the facts are scrutinized. Until within eleven years of the institution of the proceedings, the premises had been in possession of the mortgagor and his devisee, Thomas J. Howell. By the stat. 3 and 4 W. and M. c. 14, (P. L. 87,) even prior to 5 Geo. 2, c. 7, Thomas J. Howell might have been sued at law on the bond of his father, the testator. He was the debtor of the obligee, and he and the heir, by the provisions of the Act 3 and 4 W. and M., could be united in the same suit at law. Under these circumstances it might well be that the devisee could neither avail himself of the statute of limitations or the presumption arising from lapse of time; and, as has been already stated, his alienee, Bynum, had only a possession of eleven years. But upon the principle now advanced, a purchaser who has been in quiet possession fora longer period than would bar a writ of right in Westminster Hall, might be turned out of his freehold by an outstanding incumbrance of which he. had never, in fact, heard, notwithstanding the presumed notice from registration, a notice (it may be remarked) which very able jurists have held not to deprive him of the benefit of his possession, but only to preclude him from the plea of purchaser for valuable consideration, without notice. See Thayer vs. Davidson, ut supra, and Drayton vs. Marshall, Rice, Eq. 393. It is a misapprehension to suppose that the defendant’s title is derived through Robert Robinson, or that Robert Robinson ever made any payment, except on the execution against Woods administrator of Robt. Kennedy, Robinson being surety on the administration bond. Robt. Kennedy, the mortgagor, conveyed to John Kennedy in 1831 — he to Coleman and wife, and defendant holds under their conveyance. The payments by Robinson were in 1842-3-4.

But in another point of view it is to be feared injustice has been done to the defendant. In 1837, fifteen years prior to the institution of these proceedings, the heirs and distributees of Robt. Kennedy (the obligor in the bond) filed a bill against the administrators for an account, and by the report of the Commissioner 24th August, 1S37, it appeared that, after making allowance for the payment of this particular debt, set down at $2,895 30, and also of all the other creditors of the intestate, a balance remained in the hands of the administrators for distribution, of $433 10, and this report was confirmed by the Court.

The creditors were not parties, nor was it necessary that they should he. It was also proved that, in the same year, the heirs of Robert Kennedy sold, portions of his real estate. The parties all resided in the village of Chester. In Valk vs. Vernon, 2 Hill, Ch. 257, which was a bill by a creditor to charge the real estate of his debtor in the possession of his devisee, Chancellor Harper, adverting to -the propriety of making the personal representative a party in such case, refers it to the principle, that the Court of Equity in all cases delights to do complete justice, and not by halves, as first to decree the heir to perform this covenant, and then to put the heir to another bill against the executor to .reimburse himself out of the personal assets, which may be more than sufficient to answer the covenant; and where the executor and heir aré both before the Court, complete justice may be done by decreeing the executor to pay as far as the personal assets wjll extend, the rest to be made good by the heir out of the real estate. In ordinary cases it may be inconvenient and a hardship upon the creditor to delay him in the enforcement of his mortgage until an account be taken with his executor. But, in Goodhue vs. Barnwell, Rice Eq. 198, the principle was fully recognized that if the creditor stands by and suffers the personal representative to misapply or squander the assets, he is not entitled to recover against the heir. It cannot be supposed that the defendant in this case is in any worse condition Pending the proceeding against him to foreclose this mortgage, he filed what he entitled a cross bill against the plaintiff as well as against the administrators of Robert Kennedy and the surety on their bond. The object was, among other things, to shew that the debt was paid, or ought to. have been paid, from the personal estate of the obligor, and, in any event, to have complete justice done by directing payment, in the first instance, by those primarily liable, and only resort to the defendant in the event of a deficiency. This bill was dismissed by the Chancellor, and this judgment forms one of the grounds of appeal.

The whole case was referred to the Court of Errors in order to give the defendant the benefit of this ground. I think the defendant should have been allowed the opportunity of presenting his equities as arising under this bill, and that the past delay of the plaintiff in enforcing his rights against the real debtor, or his assets, precludes him from insisting on a decree against the defendant until an investigation has been made and the equities adjusted.

In respect to the mode of calculating interest 1 should concur in the judgment of the circuit Chancellor.

Johnston, Ch., and Whitner, J.

We concur in the substance of so much of this opinion as relates to the release of the mortgage; but not in so much as relates to the subject of interest.

Wardlaw, J.

I concur in the opinion of Chancellor Dun-kin, on the point of presumption, and will add some observations to what he has said about the calculation of interest.

In the case of O’Neall vs. Sims, (1 Strob. 215) the opinion had the unanimous support of the five Judges that heard the case. In the case of O’Neall vs. Bookman, 9 Rich. 80, only four Judges sat, and the decision was made by three, who had, between the two cases, taken the places of three of the five that sat in the first case.

The Act of 1777, P. L. 286, forbids (the taking of greater interest than $7, for the forbearance orf $100 one year, and after that rate for a greater or lesser sum, or for a longer or shorter time.” $14.49 for the forbearance of $100 two years is then usurious, and if it is to be sanctioned by the agreement of the parties, so might be 10 per cent, or the compounding at half yearly rests. A Court of Equity may subject a delinquent trustee to usurious interest by way of punishment; but this cannot justify a stipulation of parties to the same eifect.

There is a difference between an express promise to pay interest up to the time when the principal may become due, (which is only a mode of expressing an increase of principal,) and an agreement to pay interest on interest, when at any moment payment of the whole amount, principal and interest, may be required by the creditor.  