
    Joseph W. Miller vs. The Trustees of Jeffesson College.
    A mortgage, duly recorded, is notice to the administrator of the mortgagor, of the debt secured by the mortgage.
    A mortgage upon land, the mortgagor being dead, may be enforced against the legal representatives of the mortgagor, even though the mortgagee has never presented the claim secured by the mortgage to the administrator of the mortgagor within the eighteen months prescribed by the statute for the presentation of claims to save their bar.
    A party having two remedies, one of which is barred by statute, and the other not, may proceed to the enforcement of his claim by that which is not barred.
    The statute of this state, regulating the presentation of claims against deceased persons, to the executor or administrator, and providing that those not presented within the time prescribed, shall be forever barred, and the estate of the testator or intestate thereafter discharged from such claim or claims is, in substance, but a statute of limitations, and will be construed as such.
    The knowledge, by an executor or administrator, of the existence of a debt of the testator or intestate, will be as effectual as a presentation to prevent the bar of the statute.
    On appeal from the decree of the superior court of chancery, Hon. Robert H. Buckner, chancellor.
    The Trustees of Jefferson College, on the 29th of January, 1842, filed their bill, alleging that James C. Dickson and William L. Arick, executed a mortgage on a large body of land, on the 21st day of October, A. D. 1833, to them, to secure the payment of six promissory notes, specified, and particularly described in the bill of mortgage, amounting in the aggregate to about sixteen thousand dollars. The land was fully described in the bill, and in the mortgage.
    The bill stated that Dickson and Arick had both died since the execution of the mortgage, and made their heirs respectively, parties defendant to the bill. The prayer of the bill was for a foreclosure and sale of the mortgaged premises.
    Joseph W. Miller, and his wife, who was one of the heirs of Dickson, answered the bill, admitting the execution of the mortgage and notes, as charged, and that the mortgage-money had not been paid; but they denied the right of the complainants to enforce the mortgage, their right to do so being barred by the statute of limitations; that Jacob B. Wamach was appointed, by the probate court of Holmes county, administrator upon the estate of James C. Dickson, deceased, duly qualified, and on the 27th of February, A. D. 1836, published a nptice in the Lexington Gazette, a paper published in this state, requiring all persons having claims against James C. Dickson, to present them duly authenticated, or they would be barred; that afterwards Hach Dickson was appointed administrator de bonis non on the same estate, and gave similar notice; and subsequently the defendant, Joseph W. Miller, was appointed like administrator, and gave similar notice, and yet the complainants had never presented their claim to either of the administrators before the filing of their bill; by means of which they insisted the estate of Dickson, including the mortgaged premises, was discharged from the mortgage debt.
    The other heirs of Dickson answered to the same effect.
    The heirs of Arick filed a joint answer, admitting also, the execution of the notes and mortgage, but denying the complainant’s right to recover thereon, because Arick had died in the year 1834, leaving his last will, by which he appointed Asenith Arick, his widow, executrix, and Hiram G. Runnels, and William E. Parker, executors of his estate, who all qualified, and, in the year 1834, made due publication for the presentation of claims, or they would be barred; and that the complainants had never presented their claim, and were therefore barred, and the estate of their ancestor discharged from the debt.
    The deposition of Hiram G. Runnels was taken, who proved his qualification as executor, with the others named in the will, his publication of the usual notice to claimants, and that the notes described in the mortgage had never been presented to him.
    This was all the proof.
    
      The chancellor ordered an account to be taken of the sum due the complainants, and decreed a sale of the mortgaged premises; from which decree the defendants appealed.
    
      W. Yerger, for appellants.
    All claims against descendants are barred, unless presented within eighteen months after publication of notice to that effect ; and the estate is discharged from the payment of the claim, and the act may be given in evidence, in bar of any suit or action, either in law or equity, brought to recover the same, without being specially pleaded. H. & H. 413.
    The special statutes of limitation against executors, &c., are created, not for their personal convenience, but for- the benefit of the estate, and those interested in it. Brown v. Anderson, 13 Mass. R. 203; Gookin v. Sanborn, 3 N. H. R. 491; Davis v. Shed, 15 Mass. R. 6, 58.
    Although an administrator is not bound to plead the- general statute, he is bound to plead the special statute; and a court will not give him power to sell real estate to pay a debt thus barred. Scott v. Hancock, 13 Mass. R. 162; Thompson v. Brown, 16 Ibid. 172; Heath v. Wells, 5 Pick. R. 140.
    The ordinary statutes of limitation only bar the remedy, not the debt; and as a consequence of this rule it has been uniformly held, that where there are two remedies, one barred by the statute, the other not, inasmuch as the debt was not barred, the party might maintain his action in the form not barred 1 Bland R. 282; 1 Root, 465; 5 Pick. R. 193; 16 Conn. R. 163; 6 Ibid. 246; 9 Yerger, 51.
    It is admitted in these cases, that, if the debt is barred, no action can be maintained in any form; and that, if a debt be-secured by mortgage, wherever the debt is barred, so is a foreclosure of the mortgage. 16 Conn. R. 162; 3 Esp. R. 81. 2 Barn. & Adol. 413 ; 1 Bland R. 282.
    
      It is a well settled rule that where statutes of limitation only affect the remedy, if an action is barred by the statutes of one country, and the debtor remove into another, where it takes a longer time to bar the remedy, the creditors may sue. But whenever the statute bars the debt or demand itself, and the period to form the bar has elapsed, then a removal into another country, having a longer period of prescription, does not revive the debt, or give a right of action to the creditors. Story on Conflict of Laws, 487-489; Shelby v. Green, 11 Wheat. 361, 371, 372. See also Huber v. Steener, 2 Bing. N. Cases, 202, 211; Don v. Lippmon, 5 Clark & Finnell. 1, 16; Smith’s Sel. Leading Cases.
    If such be the rule in relation to statutes of limitation, barring the debt, and their applicability in foreign states ; “ a fortiori,” whenever a debt is barred by the limitation laws of a state a creditor cannot select any form of action which will enable him to recover upon the debt.
    A mortgage is a mere security for a debt, and collateral to it. A release of the debt is a release of the mortgage. Whatever discharges the debt discharges the mortgage. 2 Gallison’s C. C. R. 152; 3 Johns. Ch. R. 255; 5 Vesey, 670-677; Ibid. 332; 2 Co wen, 173; 2 A. K. Marsh. 109; l Bibb, 526; 3 Esp. 81 ; 22 Eng. C. C. L. 113; 11 Conn. R. 162.
    It is a well known rule, that, as between real and personal representatives of all persons deceased, the personal estate in the hands of the executor or administrator is the primary and natural fund for the payment of debts of every description contracted by the testator or intestate; consequently a creditor, who by his laches puts it out of his power to collect his debt out of the administrator, cannot enforce it against the heir. 2 Williams on Executors, 1043.
    
      W. C. Smedes, for appellees.
    The question involved in this case has been already expressly decided by this court, after able and labored argument, in the case of Joseph W. Miller v. Thomas Helm et al, in which the appellant was the same person who is appellant in the present case. The point was directly presented, and directly decided. The chief justice delivered the opinion of the court. We are satisfied with that decision. It is to be found in 2 S. & M. 687.
    It is understood, however, to be the intention of the appellant, to endeavor to convince the court that they erred in that opinion. In view of the magnitude of the claim involved in this case, such zeal, however fruitless it may prove, is perhaps commendable; and I shall, therefore, briefly submit the positions upon which the appellees rely; and will as briefly review those assumed by the appellant.
    1. The object of presentation required by the statute, is notice. The mortgage given by Dickson, was duly executed, acknowledged, and recorded. It was, therefore, constructive notice to all the world of its legitimate recitals, and actual notice to those in privity with the mortgagor. 1 Story’s Equity, 392, § 403. The mortgage, I contend, was both presentment and notice. In the language of the opinion, in the case of Helm v. Miller, a claim secured by mortgage “ is continually in a state of presentation.” See also Gordon v. Gibbs, 3 S. & M. 473.
    The heir is in privity with the ancestor, 2 Co. Lit. 506, therefore the mortgage is notice to the defendants. So executors are privy in representation to the testator. 2 Co. Lit. 506. They are bound to take notice of judgments against their testator, at their peril. Toller’s Ex. 290. So also of decrees in equity. Toller, 210; 2 Will. Ex. 661. So of records. 2 Will. Ex. 677. In Searle v. Lane, 2 Yes. R. 88, the administrator paid a debt by bond, before a debt due by a decree, having no notice of the decree, and the court held that it was a mispay-inent, that he must pay the decree, which, like a judgment at law, was notice. Even a judgment in a Pie Powder court, being notice to the administrator. If, then, a judgment in so vagrant a court as that, (for Pie Powder signifies vagabond,) and the court itself is migratory, sitting in fairs to administer justice between buyers and sellers, is notice to an executor or administrator, which he must, at his peril, regard; with how much more reason, will a mortgage, formally executed, and as •formally recorded, be notice of its contents to them 1
    
    
      2. The statute says, that “ the estate of the testator or intestate shall be discharged” from the payment of any claim not' presented to the administrator. This is a harsh statute, and' must be rigorously construed; it inflicts a severe penalty, for a slight neglect, and its operation will not be extended beyond its narrowest limits. What estate is discharged? The estate of the intestate, and that only, must be the response. But a mortgagee holds an estate in the lands himself: a mortgage is not a mere debt. 1 Story’s Eq. 532. The relation of mortgagor and mortgagee is not that of debtor and creditor, but sui generis. 2 Jac. & Walk. 184. The title of the mortgagee becomes absolute, at law, on default of payment. Mit. Eq. PI. 130. And he could enter or maintain ejectment. 2 Story’s Eq. 285; 4 Kent’s Com. 155; Jackson ex dem. Tothittv. Dubois, 2 Johns. R. 216; 10 Ibid. 481; 2 Green. R. 132; 3 Mass. 138. If, then, the mortgagee has an estate himself in the land mortgaged, how is that estate affected by a failure to present? What is an. estate in lands? Not the lands and tenements themselves, but “ that title or interest which a man hath in lands or tenements.” Coke Lit. 345. It is, says Blackstone, such interest as the tenant hath therein. 2 Black. Com. 103. In this case the intestate’s interest, or estate in the lands, was an “equity of redemption;” the interest of the mortgagee, a right to the possession of the land after forfeiture of the mortgage, and to have it sold to discharge his debt. The two estates are wholly distinct; we are not now seeking to reach the intestate’s interest in the land; the aid of the court of chancery is invoked by the mortgagee, to subject his own interest and estate in the lands, to defray his debt. If that is done he has obtained all that he asks.
    3. The object of the statute must be kept in view; that is a proper rule for its construction. Dwarris on Statutes, 689. It was manifestly to compel creditors to present their claims against the deceased within a limited period, in order to procure a speedy adjustment of the administration. A mortgagee of lands “ is under no obligation to intermeddle with the personal assets, or to seek an account thereof.” Story’s Eq. Plead. 181. His failure to present his claim, even a total neglect to do so, cannot in the slightest degree retard the adjustment of the personal assets, and the total settlement of the debts. He is not seeking the debt out of the personalty. Until the estate is declared insolvent, the mortgagee enters, the heirs are entitled to the realty and the rents. 16 Mass. R. 286. Until entry and foreclosure, mortgaged estates descend to the heir; the administrator has nothing. 16 Mass. R. 308; 9 Ibid. 422. The executor then, or administrator, controls but the personalty, and in this case has not the slightest interest in this controversy. He is not a necessary party to the suit. Story’s Eq. Plead. 181. Nor can his right to make this defence, by any imaginable pretext, be sustained.
    4. Only the executor, administrator, and collector, are authorized to plead the statute. H. & H. 413.
    It is a statute of limitations; courts of equity will not extend it. 3 Bro. Oh. R. 640; 2 Story’s Eq. 737. “ JExpressio unius exclusio est alterius.” The statute limits the right to plead the act, for the benefit of creditors, and it is not therefore pleadable by the heirs at law, the only necessary parties to this bill. They are not authorized to plead it, and are estopped by the mortgage itself from denying the debt.
    5. It is said by a failure to present, the debt is barred; this is true, but it does not follow that the mortgage is thereby barred. The barring a debt, is merely a suspension of the remedy; the debt subsists, 3 Pet. S. O. R. 278, and may be revived. 11 Wheat. 316; 8 Mass. 133. The debt may be barred; that is, the right to pursue it either by action at law, against the personal assets, and yet the estate of the mortgagee in the land be not affected. This has been expressly decided, and settles this case, I think. 11 Conn. R. 160; 19 Pick. 536; 14 Pet. R. 31; 6 Wend. 475.
    6. Statutes of limitation do not necessarily bind courts of equity. 1 Story Eq. 73, 503; 1 Fonb. Eq. B. 1, c. 4, sec. 27. Where the subject is exclusively within the cognizance of equity, they cannot be pleaded. 20 J. R. 576; 7 J. Ch. R. 118. Trusts, therefore, are not in equity, subject to the operation of the statute. Townsend v. Townsend, 1 Coxe, 28; 1 Chit. Eq. Dig. 664; 2 Scho. & Lefr. 630; Bigelow, Ex. v. Bigelow, Adiri'r., 6 Ohio, 97; 17 Yes. 97; Beckford-Wake, and Hollers's case, Sng. on Tend. 345; 1 McCord Oh. R. 318; Fonb. Eq. 244; Kane v. Bloodgood, 7 Johns. Ch. R. 110.
    A mortgage is foreclosable only in equity. It is a trust, and is exclusively within its cognizance; and the statute we are considering is but a statute of limitations, and must be so construed ; and such a construction has been put upon a statute precisely similar in its object and principle, in Massachusetts.
    In Johnsons. Ames, 11 Mass. 178, the court say, the statutes directing the time for bringing suit against heirs, executors, and administrators, apply only to the demands of mere creditors of the estate of the deceased, “ and not to claims on specific property, held by the deceased, on trust for other persons, and which has come into the hands of the heir, executor, and administrator.”
    In Farnam v. Brooks, 9 Pick. 213, the court say expressly, “ the statute of limitations does not apply to direct trusts, created by deed or will,” and which construction the court in 11 Pick. 182, re-adopts and applies directly to the statutes limiting suits against administrators.
    In Trecothick v. Austin etal., 4 Mason, G. R. 29, Judge Story has, in effect, decided this case. He says the “statute of limitations (directing suits against executors and administrators, and limiting the period in which they could be brought) never was intended to apply to any cases of trust, or trust property in the hands of the executors and administrators; but simply to property belonging to them as assets of the testator. The law on this subject does not appear to me involved in any real difficulty. Executors are charged with no more, in virtue of their office, than the administration of the assets of the testator.”
    7. Courts of equity adopt statutes of limitations in analogy to the rules applicable to courts of law. The rule in equity is, that whenever statutes of limitations barred at law, they barred in equity, and no further. 2 Story Eq. 737. But twenty years is in equity the shortest period that will bar a suit for real estate. 4 Cow. 717; 9 Wheat. 489. A mortgage may be enforced in either of three ways, by ejectment against mortgagor, by foreclosure, and by suit at law. 10 J. R. 481. The administrator is a necessary party only in the latter case; each remedy would be barred by the special statutes of limitations regulating them, and the others would be in full force until in turn barred.
    8. The principle of marshaling assets, will apply in this case. In equity, a party having two funds, and another party but one, to resort to for the payment of their debts, the court will compel the first to resort to that fund which the other cannot reach. 1 Story Eq. 534, 571 ; 1 J. C. R. 412. In this case the general creditors could reach only the personalty in the hands of the administrator; and they could compel the mortgagee to resort to the mortgage, in case he had sought the personalty for the discharge of his debt. Will the court punish him for doing voluntarily and without compulsion what the court would have made him do, on proper application 7
    
    9. I refer the court to the very able opinion of the chancellor, in this case, to be found in Freeman’s Chancery Reports, 481. The view taken in that opinion of the construction to be put upon the statute, is, in my opinion, conclusive; to give it a different construction, will be to inflicta loss upon innocent parties, and reward those who are taking advantage of a technical and unconscientious plea to deprive complainants of their debt, and clothe themselves with property to which they have no right, either legal or equitable. Complaiuants have not slept upon their rights. Relying upon the mortgaged premises for their security, they properly refrained from intermeddling with the personal assets and the claims of other creditors, and for that they are to be amerced with the total loss of their debt. So abhorrent a construction was never intended by the legislature, and is not justified by the statute.
    
      
       The opinion of Chancellor Buckner will be found reported at length in Freeman’s Chancery Reports, 474.
    
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

This case comes up by appeal, from a decree in chancer}'-. The case made by the pleadings and evidence, is this, James C. Dickson, and William L. Arick, in the year 1833, purchased of Jefferson College, two sections of land, then unlocated. The claim was located by the purchasers, and they gave six promissory notes for the purchase-money, and executed a mortgage to secure the payment. Not very long afterwards, Dickson and Arick both died, and this bill is against their heirs and legal representatives for a foreclosure of the mortgage. The answers admit the making of the notes, and the execution of thé mortgage, and also that the money is still unpaid ; but sets up the defence that the notes were not presented to the administrators within the time prescribed by law, and that consequently the notes and mortgage are barred, and the estate discharged from the payment of the money. There is no proof that the notes ever were presented to the administrators of either Dickson or Arick; on the contrary, one of the executors of Arick testified that they never were presented-to him. Due publication by the administrators having been made, the single question is, whether the notes being barred, the mortgage, or the remedy on it is also barred.

This question was decided in the case of Miller v. Helm, 2 S. & M. 687, and again adverted to in the case of Johnson v. The Planters Bank, 4 S. & M. 165; though it was passed without any direct decision on the point. It is again raised, and a distinction is taken between this statute and the general statute of limitations. The former, it is said, bars the right; the latter, the remedy only. The language of the statute is as follows: “ All claims against the estates of deceased persons shall be presented to the executor, administrator, or collector, within eighteen months after publication of notice for that purpose, by such executor, administrator, or collector, and not after; and all claims, not presented within the time aforesaid, shall be forever barred, and the estate of the testator or intestate, shall be thereafter discharged from the payment of such claim or claims.” It is true that the statute of limitations has been generally held to apply to the remedy,- but there has been much controversy on this question, and certainly, with some plausibility. It is a very difficult matter to form an idea of a right purely legal, for the enforcement of which there is no remedy; and yet the mind is forced to create some such ideal thing, to sustain the proposition. If the right is not destroyed by taking away the remedy, it must have some sort of dormant existence, and depend upon accident to resuscitate it from its torpid state, in all time to come, for I suppose no common law rule of prescription, could operate on anything which is dormant by law. Generally, in a legal sense, the idea of a right, necessarily embraces within it, as necessary to its existence, the idea of a remedy. A right consists in the power to enforce it. It is difficult to draw any distinction between this statute, and the general statute of limitations, as the same result is brought about by both, but by different language. In the one instance, the right is destroyed as a consequence, but in the other, directly by the language used. The two statutes differ in language more than in substance. The bar may be as effectually pleaded in one case, as in the other. It takes place in one, by a failure to sue, and in the other, by a failure to present. The statute of limitations is said to be a statute of presumptions. It presumes payments to have been made, and acquittances lost. The same may be said of this, with equal propriety. If a claim is not presented within the prescribed time the presumption is, that it has been paid, inasmuch as the holder must be supposed to have known that the law required him to present unsatisfied claims; and it is to be supposed, also, that he has been duly notified. It must be useless to refer to authorities to prove that where a party has two remedies, one of which is barred by the statute, and the other not, he may proceed on that, which is not barred. This is not denied, except in cases where the right is barred. We may refer to the case of Lincoln v. Battelle, 6 Wend. 475, as being in point on this particular question. The defendant was the owner of an estate in the Island of St. Croix, and had obtained from the king of Denmark, a royal grant, authorizing her to call in her creditors by proclamation within a certain time. It was proven that a failure to present a claim within the time, resulted, by the law of the place, in a total bar or forfeiture of the debt, and yet the supreme court of New York, held this to be but a law oflimitations, and not pleadable in that state. The cases referred to by counsel, in support of the distinction, or at least such of -them as we have had an opportunity to examine, do not, as we think, sustain it. In the case cited from 2 Barn. & Adol. the court only decided that a particular remedy was barred, but not the right, and the party was allowed to pursue a different remedy. So in the case in 1 Bland’s Ch. R. the court decided that although a note or bond might be .barred, yet a mortgage taken to secure the same debt, was not. It was said that where a party held two securities, a note and a mortgage, he might proceed .on both at the same time. A consequence of this would seem to be, that there are two distinct rights, for a party cannot pursue separate independent remedies on the same right. On a bond, .he may bring covenant or debt, but he cannot bring both. If there he two distinct rights, then it is clear that the bar of one does not bar the other. But it is not necessary to place the question on that ground. We can regard this statute only as a statute of limitations, which does not operate on remedies not barred. As a subsequent promise will take a case out of the statute of limitations, so will a knowledge of the existence of the debt, by an executor or administrator, take it out of this statute .without presentation. Helm v. Smith, 2 S. & M. 403. The mortgage was on record, and therefore constructive notice to the administrator. If the notes and the mortgage constituted but one claim, or right, why may it not be said that these administrators had notice or knowledge of the existence of this claim ? They knew of the existence" of the mortgage, and that was as much evidence of the debts as the notes'. The mortgagee had a right to proceed on his mortgage without suing on the notes. The administrators could not have supposed the debt was paid, for there was no satisfaction entered. Assuming, then, that the notes and the mortgage constituted distinct and separate rights, the bar to one was not a bar to the other. Or assuming that they were but evidences of the same debt, then the notice afforded by the registry of the mortgage was notice of the existence of the debt. The evidence derived from a knowledge of the existence of a mortgage, must be as conclusive as to the existence of a debt, as the evidence derived, from the notes to secure which it was given.

The notes are, moreover, particularly described in the mortgage, and it would be strange to say, that one part of a mortgage was notice to the administrators, but not the whole of it. In every aspect, therefore, in which we have been able to view the case, we are forced to the conclusion that the defence cannot avail.

The decree of the chancellor must be affirmed.  