
    MARY BICKFORD, administratrix of JOHN BICKFORD, vs. JOSEPH DANIELS.
    An administratrix may sustain a writ of entry to foreclose a mortgage to her intes*
    ‘W hen writings are offered as evidence of a mortgage, the question whether they amount to a mortgage or an absolute conveyance, must be settled on common law principles,
    A wmitig of defeazance, never delivered to the grantor in a deed, but deposited with a third person tobe delivered on a condition, which the grantor never performed, does not. render the deed a mortgage.
    special non est factum is an unnecessary pleaand when the demandant does not count on a mortgage, the question, whether his title is or is not by a mortgage, can always be raised by a plea or suggestion, alleging that his title is only by mortgage, and to this the demandant will demur or join issue.
    This was a writ of entry.
    The demandant counted on the seisin of her intestate as in fee and in mortgage, by means of a deed from the tenant, bearing date June 1st, 1804, and a defeazance from the intestate of the same date, with a condition, that the deed should be void on payment of $1083, in three years.
    The tenant pleaded the general issue, and, also, specially, that the defeazance was never executed by the intestate.
    At the trial here, Feburary term, A. D. 1819, the deed and the signature of the defeazance were duly proved — but the subscribing witness to the defeazance farther testified, that the defeazance had never been in possession of the tenant, and, by express agreement of the parties, never was to be delivered to the tenant, unless he performed its condition.
    Both parties wished that if the money was not paid at the time stipulated, the deed should not become a mortgage ; and hence the intestate deposited the defeazance with the witness till the expiration of three years ; when, the money not having been paid, the defeazance was returned to the intestate’s representative.
    On this evidence a verdict was taken for the tenant, subject to further advisement.
    
      W. K. Atkinson. E. Smith, <&■ Sullivan, counsel for the de-mandant.
    
      Mason ⅜- J. Smith, for the tenant.
    
      
       19 John. Rep. 300»
    
   Woodbury, J.

The demandant, counting as administra-trix, cannot recover the land in dispute, unless her title to it is founded on a mortgage to her intestate.

(1) 2 Vent. 20,-4 Coke 95.- 2 Es. Di, 144.— i Mass, Rep. 204.— 4 ditto 358.

(2) 1 N. H. Laws 2 i 1,217, 219,227,230.-3 Mass. Rep. 258, Dean vs. Dean.

(3) 1 N H. Rep. 39, 361. Lund vs. Lund.

Because the -title to the real estate of intestates vests in their heirs and not in their personal representatives; and hence, as a general rule, all actions concerning such estate must be instituted in the name of the heirs.(1)

To this rule the only exceptions, which occur to us, are actions brought after a license from some court to sell the real estate, and actions brought to foreclose mortgages.

It is now unnecessary to decide, whether the first supposed exception actually exist, as the demandant does not claim under it; though some have thought it to exist from the necessity of the case, and by implication from our statutes.(2) The second exception, however, is material, as the de-mandant does claim under it; and, in our opinion, it actually exists as a consequence from the established principle, that money due on mortgages belongs, not, in the first instance, to the heirs, but to the personal representatives, of the mortgagee. Co. Litt. 208 note.—3 Woodeson 79.—4 Reeve's His. E. L. 435.—1 Chitt. Pl. 56, 87.—Comp. 371, note.—1 Saund. 216, a.—Burr. 978.—7 Mass. Rep. 317.—4 Mass. Rep. 354, Drinkwater vs. Drinkwater, Ad.—5 ditto 240, Willard vs. Mason, Adx.

If the demandant, then, has proved a mortgage to her intestate, she is entitled to recover; while, on the contrary, if the facts in the case show only an absolute conveyance to her intestate, his heirs and not the'demandant should have instituted this suit.

The question, whether the transaction did or did not amount to a mortgage, we are earnestly entreated by the de-mandant to settle upon chancer^ principles; but we possess no powers as a court of equity, except those conferred by express statute ;(3) and concerning mortgages, our power as a court of equity does not begin, until the conveyance in question is first ascertained'to be a mortgage. Thus it is only, “ where the forfeiture” “ of any estate granted upon “ condition executed by deed of mortgage or bargain and “ sale with defeazance, shall be found by verdict of a jury, “ or by default or confession of the” mortgagor, that “ the “justices of the superior court” are “ empowered t© chan- “ cer such forfeiture.^!)

(1) 1 N. H.Laws Ba-

(2) 2 Mass.— 4 ditto m — s ditto 45,

After the remarks of this court in Lund vs. Limité should have added no further illustration, argument or authority on the present point, had it not been discovered that former decisions in this state were somewhat different.

But the practice and decisions must have been inadvertent, which would permit a court of common law to sit in chancery to settle a question, which must be settled or agreed before they are empowered to apply any chancery principles to the case.

It must first be settled at common law that there is a mortgage and a breach, or, in other words, a forfeiture. Then, and not till then, we are empowered to adopt equitable principles and “ chancer such forfeiture.”

It is clearly to be inferred from numerous casos in Massachusetts, where their statute resembles ours, that the question concerning the character of the conveyance is always decided before the hearing in chancery ;(2) and in Kelleran vs. Brown, (4 Mass. Rep. 445) Parsons, Ch. J,, expressly observes, “what shall be deemed an instrument of defeaz- “ anee must still be determined upon the principles of the “ common law.”

The tenant has professed great embarrassment as to the mode in which this question is to be raised at common law.

But when the demandant counts on a mortgage, as in this case, the mortgage may be admitted by default, or denied by the general issue ; and when he does not count on it, the tenant, after default or verdict, may plead in bar, or, as we usually term it, file a suggestion, against any other judgment than one as of mortgage, averring that the title of the de-mandant is only by a mortgage. This the demandant may admit by a demurrer, or deny by taking issue on the facts averred; and in the latter case, the issue can be tried by a jury, and the question settled with perfect facility on com* mon law principles.

In the present action, as the defeazance is set out in the writ, the question concerning the character of the convey-anee arises equally well under the general issue, and under the special non est factum. For, under the general issue, the demandant must prove a delivery of the defeazance, or she will not support her allegation, that the intestate was seized “ in mortgage.”

(1) 1 Chitt. PL 497.— 4 Es. Ca. 255, Stayles vs. Pearson.

(2) 1 Chitt. PI. 479. — 11 Coke 28. — 6 Mod. 217.

(3) 1 N. H. Rep. 357, Canning vs. Pink-ham, & auth. there cited.— 4 Crancii 219.

(4) Co. Pitt. 218, a. — 10 John. 27, 359. —1 John. Ca. 125. — 7 Mass. Reo. 413 — 6 D & E. 719— 3 Cranch 42, note.

This allegation, too, is here material; because we have before shown, that she cannot recover upon his seisin, unless it were “ in mortgage and “ any matter of defence, “ which denies what the plaintiff would, under the general “ issue, be bound to prove in the first instance in support of “ his action, may and ought to be given in evidence under “ that plea.”(I)

Hence, it becomes unnecessary to consider an objection which has been suggested to the form of the second plea.

But the form is not without precedent ;(2) though a special non est factum is now held to be in all cases useless. 4 Maul & Selw, 339, Thompson vs. Rock.

Whether the conveyance in this case is to be considered absolute or a mortgage, depends aliogether on the effect of the defeazance. The defeazance was perfect in every respect, except its delivery ; and, being a deed, a delivery of it is essential to its operation. This delivery may be, eit her to the opposite party, or to a third person for him ; and when to a third person, may be either absolute, or on a condition precedent to be performed by the opposite party before the delivery over is to take effect.(3)

When a deed is, in this last manner, deposited with a third person, it has no operation till the condition be performed. It is an escrow. 8 John. 520, Catlin vs. Jackson.—1 Inst. 36, a.—Shep. To, 56 to 59.—3 Coke 35, b.—Plowd. 344.—Perk. Convey. 142.

Thus, the general rule in all conditions precedent is, that nothing vests till the condition be performed.(4) And it is a solecism to say a deed has been delivered to an individual, when he never has had either the actual possession, or a right to the actual possession of it.

But there was no other delivery in the present case. The defeazance was lodged with a third person under an express condition, that it should not be delivered to the tenant, unless a specified sum of money was paid within three years. The money was not paid ; the defeazance, therefore, was not delivered over, and ought not to have been delivered ; the conveyance from the tenant remains, as at first, absolute ; and consequently the demandant, in her capacity of administratrix, cannot recover.

Judgment on the verdict.

(1) 1 Chitt. PL 319. — 1 East. 293,-7 D. & E. 129. — 4 Mass. Rep. 474.

(2) Litt. sec. 340. — Com. Di, “ SJ >ndi-tíoa,” G. 9.

(3) 3 Leon. 260. Chaney's Case. — 4 Leon, 46.

(4) Co, Litt. 210, b.

(5) Co. Litt. 210, b.

(1) 8 D. & E. 379. — 14 Vez. Jr. 170. — X Mason 1% Peisch vs. Dickson. — 1 PhillipsEv» 441.

(2) 18 Edw. IV. 2.

(3) 18 Edw. IV. 3. — Vide etiam.-4 John. 285,Thompson vs. Ketcham.

(1) 15 Mass. Rep. 262, Wilder vs. Whittemore. 
      
       Richardson, Chief-Justice, having been of counsel, did not sit.
     