
    Ebenezer Cutler versus Gilbert W. Haven.
    A note and a mortgage deed given to secure it, were handed over, together with other effects, by the administrator of the mortgagee, upon the final settlement of his account in the probate office, to the guardian of the heirs of the mortgagee. The note Was not indorsed, nor was the mortgage assigned in writing, but a power of attorney was given to the guardian by the administrator, authorizing the guardian to enforce the demand ; and the administrator was thereupon released by the guardian from all liability as administrator. The guardian afterward settled his account, (without charging himself with the amount of the mortgage debt, which he had not collected,) and was discharged from the trust. It was held, that the guardian, after his discharge, retained no interest in the mortgage which-would authorize him to enter to foreclose, as he was not liable to account with the heirs for debts which were not collected ; and that a subsequent discharge of the mortgage by the administrator, upon the payment of the debt, was valid.
    Assumpsit for use and occupation.
    At the trial, before the late chief justice Parker, it appeared that the plaintiff derived his title to the land from his father, to whom it had been mortgaged by Gershom Brown, the former owner. On May 7th, 1825, the plaintiff took possession of the land for condition broken. Previously to the mortgage to the plaintiff’s father, Brown mortgaged the land to Samuel Haven junior. Upon the death of Haven junior, administration of his estate was granted to Samuel Haven and Vashni Hemmenway. On January 19th, 1827, the plaintiff obtained from Samuel Haven, the surviving administrator, a discharge of the mortgage to Haven junior, upon payment of the money due thereon, after deducting $ 117, which the plaintiff claimed to be due to him from one of the heirs of Haven junior.
    It was proved by the defendant, that upon the decease of Haven junior, Joseph Valentine was appointed guardian of his heirs ; that on October 6th, 1818, the administrators of Haven junior settled their final account in the probate office, and paid over to Valentine all the effects in their hands, and passed over to him a large number of promissory notes due to the' estate, and among them the note of Brown secured by the mortgage, and also the mortgage deed. But the notes were not indorsed by the administrators, and the mortgage was not assigned by any written instrument. The administrators, however, at the same time, gave Valentine a power of attorney authorizing him to act in their names, in order to enable him to realize the full benefit of the effects. Valentine thereupon gave them a full discharge from all further claims against them as administrators. In 1822, Valentine settled his final account as guardian, and was discharged from the guardianship ; and successors were appointed to the guardianship of such of the heirs as were still under age. At the time when the mortgage was discharged by Haven, all the heirs were of full age. The plaintiff at the same time knew of the transactions above mentioned, between the administrators and Valentine. In 1825, a few months after the plaintiff had taken possession of the land, the debt secured by the mortgage to Haven junior not having been paid, Valentine, by virtue of the power of attorney, entered upon the land to foreclose the right of redemption, and made a lease to the defendant ; under which the defendant occupied the land.
    The defendant offered evidence to prove that Valentine, upon the settlement of his guardianship account, paid over to the heirs the amount due upon the mortgage to Haven junior ; but the jury found that no such payment was made.
    The defendant then contended, that although the debt due upon the mortgage to Haven junior was not paid by Valentine, upon the settlement of his guardianship account, yet he was still liable to account for it to the heirs ; and that he therefore retained an interest in the mortgage, which was not defeated by the discharge of the mortgage by the surviving administrator, and that consequently his entry and lease to the defendant were valid. But the jury were instructed, that unless Valentine had paid over to the heirs of Haven junior the debt secured by the mortgage, he had no interest therein which would justify hi? taking possession of the mortgaged premises, and that the discharge by the surviving administrator was effectual. '
    The jury returned a verdict for the plaintiff, and the defendant excepted to this instruction of the court.
    
      oct. 7th.
    
    
      Merrick, in support of the exceptions.
    After the assignment to Valentine by the administrators, the discharge of the mort•gage by the assignor would not defeat the rights of the assignee. Jones v. Witter, 13 Mass. R. 304 ; Cutler v. Haven, 8 Pick. 490. Even if Valentine did not pay over to the heirs the amount due upon the mortgage, the plaintiff cannot take any advantage of it; for that is a question between Valentine and the heirs. Valentine might have claims against the heirs which he might set off, and which could not be defeated by the act of the plaintiff, who is a stranger. If Valentine did not pay over the mortgage debt to the heirs, then, as he had released the administrators, he became liable himself with his sureties for that amount; but if the discharge of the mortgage by Haven is valid, the claims of the heirs against Valentine is destroyed, and they are turned over without their consent to seek their remedy against Haven. Neither had the plaintiff and Haven, when the mortgage was discharged, any right to deduct the sum of $ 117 from the mortgage debt as due from one of the heirs, unless with their consent.
    
      Newton and Lincoln, contrà.
    
    If Valentine had no interest in the mortgage, his entry was of no effect, and the lease to' the defendant would be void. We say that by the assignment to Valentine, the legal control merely of the mortgage passed to him ; the interest remained in the heirsi Valentine, being a guardian, could acquire no interest in it by purchase ; and if he had any interest, it was extinguished by his discharge from the guardianship. No equitable interest would continue in him after his discharge, by virtue of the power of attorney, for the power was appurtenant to the trust, and could not be separated from it ; Ren v. Bulkley, 1 Doug. 292 ; and upon the extinguishment of the power, the right of the administrators to resume control over the mortgage, revived. It was the duty of Haven, upon the discharge of Valentine from the guardianship, to collect the mortgage debt, and his discharge of the mortgage is valid. Notwithstanding the discharge given by Valentine to the administrators, if further assets are received by Haven, he is bound to account for them.
   Wilde J.

afterward drew up the opinion of the Court.

The plaintiff’s claim is founded on a mortgage deed from one Brown to the plaintiff’s father ; and the defence is founded on • a prior mortgage of the same premises, and from the same mortgager, to one Samuel Haven junior. The principal question made at the trial was, whether the mortgage to Haven had been legally discharged. A discharge was proved to have been made by the administrator on Haven’s estate, which the defendant attempted to impeach by showing an equitable assignment of the mortgage and the mortgage debt, to Joseph Valentine, the guardian of Haven’s heirs at law'. The proof was, that the mortgage, and the note it was intended to secure, were passed over by the administrator to Valentine, with other securities, with a power of attorney to collect the debts, and that Valentine thereupon gave the administrator a discharge from all liability. This, although it did not amount to a legal assignment of the mortgage, gave to Valentine an equitable interest or lien which authorized him to control and discharge the mortgage. But this interest or lien ceased upon the discharge of Valentine from his trust as guardian, and the settlement of his guardianship account. The defendant then attempted to prove that Valentine, when he settled this account, paid over to the heirs the amount due on the mortgage ; but the evidence to establish this fact failed, and the jury found that no such payment was made. The defendant’s counsel then contended, that if the debt was not paid by Valentine, he was liable to the heirs, and consequently still retained an equitable interest in the mortgage. But it was held at the trial, that if the debt was not paid over by Valentine to the heirs, he had no interest in the mortgage, which would justify him in taking possession of the premises ; and that the discharge by the administrator was valid ; and so the jury were instructed. To this instruction of the court the defendant excepts. But there seems to be no ground for the exception. Valentine was discharged from his guardianship, and his guardianship account was settled. But if it had not been settled, he was only liable to account for the debts collected, and the effects which came into his hands. The mortgage debt in question had not been collected. His entry gave him no title to the premises, and if the mortgage had been foreclosed in consequence of an entry made by him under his power, the fee would not have . vested in him, but in the administrator. It is impossible therefore to maintain the position, that Valentine is liable to account with the heirs for the demand secured by the mortgage, or that he had any interest in it, either legal or equitable, after his discharge from his guardianship, which could defeat the discharge made by the administrator.

Judgment according to verdict.  