ORLEANS, March, 1842. Merriam plied on the mortgage notes and was so applied by Barton 'when he received it of Allyn, and therefore allows the same 'and the interest thereon up to the 1st day of January, 1841, adm. of Leach' amounting in the whole to $496.59, to which add $216.96 'allowed for rents, makes the whole sum allowed the orator 'by the master amount to $713.55. v. Barton et al. 'The defendant claimed to have the orator sworn to an'swer interrogatories in relation to his account, but he was 'not present and was not sworn. 'The admission of the copy of the deed from Barton to 'Leach was objected to by the orator, but the objection was ' overruled. 'The said Heman B. Allen presented his account, consist'ing of the following items ; 'Paid taxes of four cents per acre on wild lands from 1814 'to 1840, 'Agency since Leach left the lot in 1813, To paid John Kimball as charged in his account, ' rendered the heirs of said Barton, To interest on the above $80.00, it being paid some To betterments on said lot, as it appears from the $20.00 54.00 6.88 58.00 200,00 $338.88 To amount of principal and interest of two pro- 'said Barton for $107.65 each, and dated June 20, 1808, and payable the first day of January, 1809, and 1st day of January, 1810, with in'terest, CONTRA CREDIT, By rent of of of lot No. 7, from 1828 to 1836, 1409.54 'said lot, as appears by John Kimball's account ' rendered to the heirs of said Barton, 'By 2 two years' rents 1837 and 1838, 'By 1 year's rent 1839, 'In relation to the first charge of $20.00 for paying taxes, 'I find that in 1819, 1822 and 1825 each year the lot in 'question was sold to pay taxes at vendue and bid off by 'said William Barton and redeemed. That in 1824, the 'same lot was again sold to pay taxes and bid off by May 'and redeemed, but do not find who redeemed it; that in '1835, it was again offered for sale at vendue for taxes and bid down to 1-4 of an acre for the whole by John Kimball, ' and that said 1-4 of an acre was not redeemed and that 'said John Kimball quit claimed his right and interest to H. 'B. Allen. The whole charge is therefore disallowed. 'In relation to the next charge of $54.00 for agency on 'said lot since 1813, it was proved that Benton and Albee, ' and Albee's administrator, in succession, possessed and oc'cupied said land, from 1816 to 1828, without any understanding with or interference or oversight of the said Bar'ton or his agent, and that, in 1828, said Barton took a quit 'claim deed of the land from Albee's administrator, and John Kimball took the oversight and charge of said lot from that 'time until August, 1836, at which time he settled with the 'said H. B. Allen, who then appeared to claim said premises in his own right, or in the right of said Barton's heirs, said 'Barton having died in 1831, and deducted pay for his 'trouble in taking care of said lot and paid said H. B. Allen, 'a ballance of $80.00 for rents received by him up to that 'time which $80.00 is allowed in the orator's account, the 'services of the agent having been settled at that time. The 'charge of $54.00 is disallowed. The next charge of $6.88 is disallowed for the following reasons: the charge is contained in the account of John 'Kimball, agent of said Barton, in 1836, and appears to have 'been made in September, 1827, and was for paying a bid ' on the land in question. 'It appears that a tax of four cents on the acre was as'sessed on the town of Barton in 1825, under which the land was sold by the collector and bid off by said Barton, ' and was redeemed from the bid. Believing that said Barton v. Barton et al. ORLEANS, 1842. Merriam adm. of Leach must have been paid by the redemption, the master has dis'allowed the charge. If the court are of opinion the charge 'should be allowed, they will allow it at $8.53. The next charge of $58.00 for interest is disallowed, Barton et al. because the charges making the principal are disallowed. 'In relation to the charge of $200.00 for betterments; it 'was proved by the testimony taken and filed in the cause 'that no betterments were made upon the premises by said 'Barton, but it was proved by the witnesses admitted to 'testify at the hearing before me, as before stated, that better'ments were made by said Benton, and Albee, who succeed'ed Benton in occupying the lot. 'I have disallowed the charge, but if the court be of opin'ion that the testimony of Benton and Kimball was properly 'admitted, and that the betterments belonged to said Barton, 'they will allow the charge at $100.00, which sum I find to be the value thereof. If the testimony was improperly 'admitted no betterments were proved and the charge must 'be disallowed. Neither the notes nor mortgage were produced at the 'hearing before me, nor was any account given of them 'other than that which is above set forth. 'If the court be of opinion that the notes be allowed in 'the account, I find that the notes and simple interest there'on will, on the 1st day of January, 1841, amount to the 'sum of $635.12. 'The defendant offered in evidence a copy of a deed from 'William Barton to James Leach, conveying the land in ' question, dated the 25th of September, 1807, acknowledged the same day and recorded the 20th of January, '1809; also a copy of a deed from Sally Leach and Phebe 'Leach, Isaiah B. Leach, Lyman Potter, Elizabeth Potter, 'James Leach, Charles Smith and Emily Smith and Joshua 'Leach, widow and heirs of James Leach, deceased, dated 'the 4th day of June, 1830, and acknowledged the same 'day in the state of Pennsylvania, conveying said lot to John 'H. Kimball of Barton, which deed was recorded in Barton 'September 21, 1837. Also a copy of a record of a deed from Sally Leach, James Leach, Phebe Leach, Isaiah B. Leach, Charles Smith, 'Joshua Smith and Lyman Potter, widow and heirs of James 'Leach, deceased, dated the 9th day of April, 1830, and ' recorded in Barton, September 21, 1837, conveying said 'land to John H. Kimball. ORLEANS, March, 1842. Merriam v. Barton et al. 'Also an original deed from Isaiah Leach, Charles Smith adm. of Leach and Emily Smith, dated the 14th day of August, 1837, ' and recorded in Barton the 4th day of September, 1837, 'conveying all their interest in said land to defendant, H. B. 'Allen. All said deeds are quit claim deeds. 'The master, in stating the account, has not in any man'ner treated the three last mentioned deeds as any evidence 'before him, nor consulted their effect upon the rights of the 'parties. The admission of them was objected to by the 'orator.' On the coming in of this report, the defendant excepted thereto and prayed that it might be recommitted to the master for the following reasons among others. 1. Because the master reports that he finds a fact by presumption against the direct deed and acknowledgment of Leach, under his seal. 2. Because without evidence, but merely upon presumption, the master finds the mortgage notes paid or nearly so before the mortgage was executed. 3. Because the master allows rents and profits for improvements made by Benton and Albee, when the improvements were conveyed to the defendant by Albee's administrator. 4. Because the master allowed the several items of the orator's claim without their being verified by oath of the party, agreeably to the 41st rule in chancery. 5. Because the master has not allowed the account of H. B. Allen, and particularly of three-fifths of two-thirds of the rents and profits, a charge in his account, nor has he disallowed the same nor assigned any reason for not passing upon them, and reporting the facts in relation thereto. 6. Because the report is in other respects informal, uncertain, ambiguous, &c. But the chancellor refused to recommit the report. E. Paddock, for orator. We contend that as neither the notes nor mortgage were presented, nor the absence of them in any way explained, the legal presumption is that Leach, in his life time, paid off ORLEANS, 1842. Merriam adm. of Leach the mortgage and cancelled both notes and deed; and the evidence is very conclusive to the point that such was the the case. The master has clearly shown that all the defendant's Barton et al. charges, except the $200.00 for improvements, ought to be disallowed, and the $200.00 for improvements, sworn to in the answer, had not the shadow of truth to sustain it. The legal fee of the land being in Leach, or his legal representatives, all improvements made thereon would enure to his benefit, by whomsoever made; therefore, Benton, having gone into possession without any color of right, must be viewed as a trespasser during his occupancy, and, had he injured the land, he would have been held liable to make good the damages. Benton conveyed nothing to Albee. His deed covers no part of lot No. 7, nor was it mentioned in the bargain as testified by Benton. Albee's occupancy was altogether tortious, unless he had permission from Conant, administrator of Leach, as testified by Samuel Conant. What that agreement was we know not, and, from the presumption that it was a parol agrement, it never can be known. Whether he had permission from Conant to occupy or not, he had no interest, and could acquire no rights which could devolve on his administrator. If, then, the Leach land was in no wise assets in the hands of Benjamin Wiggins, administrator of Silas Albee, Wiggins conveyed nothing to William Barton by his deed of the 7th of October, 1828, and it would seem Barton gave nothing for it. But if Barton acquired any interest in the land by the Wiggins deed, that interest enured to the benefit of Leach, his assignee, or his heirs, until Barton shall have foreclosed his mortgage against Leach or his heirs. This deed from Wiggins, however, without any license from the supreme court, or court of probate, affords another proof that the mortgage was paid off. The 49th and 50th sections of the probate law (Slade's edition) recognize real estate as assets in the hands of the administrator for certain purposes, and therefore it is such until the estate is settled. It is said that this administrator cannot support the present bill, because it does not appear that there are any claims |