against the estate, and yet it is pretended by the defendants ORLEANS, that the above notes are still due from Leach's estate.

March, 1842.

v.

The orator was legally appointed administrator de bonis Merriam, non upon the estate of James Leach; and, until his letters adm. of Leach of administration are legally recalled or vacated, he is invest- Barton et al. ed with all the powers of an administrator, and it is begging the question to say that there are no debts to pay. And supposing there were none, the orator has a right, by the common rules of chancery, to maintain this suit, though he obtained his letters of administration by fraud, for the title to sue can only be tried on an appeal from the probate court, 12 Vesey, 298; 3 P. Wms. 370; 2 Swift, 219; and, until the question comes up in that shape, this court will presume that the probate court has done right. The orator having obtained probate, it is conclusive as to his title to sue. Again, the question of having the right to sue cannot be raised in this stage of the case; it can only be taken advan.tage of on a demurrer. 2 Swift, 219.

But our statute puts this question to rest. The 55th section (Slade's edition) makes it the administrator's duty to keep the fences in repair, and the 63d section expressly gives the right to any executor or administrator to maintain any action of trespass quare clausum fregit, or ejectment, or any other proper action, to recover the seizin or possession of any houses, lands, tenements, or hereditaments, or any damage done thereto. After this sweeping clause, it cannot be said, with a very good grace, that the present orator cannot maintain a bill to redeem and pay off a mortgage. It is a novel objection for a mortgagee to make that he will not receive his money; and the administrator's bond secures the community at large against his making a misapplication of the assets.

Again; if the present orator cannot maintain this bill, then it cannot be maintained at all; for the same 63d section of the statute bars the right of devisees and heirs from suing until the division of the estate; and, before a division, it would seem desirable to ascertain what there is to be divided.

J. Cooper, for defendants.

The questions presented are, first, can this orator be en

v.

ORLEANS, titled upon equitable principles to redeem the estate in quesMarch, 1842. tion, and second, if entitled to redeem, is he entitled to an account? The defendants contend that both of these quesMerriam, adm. of Leach tions should be answered in the negative. The orator is not, Barton et al. upon equitable principles, entitled to redeem the estate, admitting the bill to be true. Fonblanc's Eq. 248-9, note s. Blewell v. Thomas, 2 Ves. Jr. 669. St. Johns v. Turner, 2 Vernon, 418. Trask v. White, 3 Bro. C. R. 289. Demarest v. Wynkoop, 3 Johns. Ch. R. 135-6. Gibbs v. Baremore, 5 Johns. C. R. 553. Fonb. B. 3, chap. 1, §6, p. 495. 1 Mad. 519-21. Stewart v. Nichols, 5 Cond. Eng. C. R. 405. Shephard v. Murdock, 12 do. 605. Appleton v. Edson, 8 Vt. R. 239. 1 Johns. C. R. 594. Moore v. Cabel, 1 Johns. Ch. R. 385.

There can be no right of redemption in this orator, unless it is expressly given by statute, because the estate was in Leach and vests in his heirs. They only can redeem. Suppose the defendant should foreclose, who should be defendant, and would this orator be a party? The heirs only have a right to redeem. Solley v. Gower, 2 Vernon's R. 61. Knapp, 179. 1 Chitty's Eq. Dig. 699, 700-1.

To entitle this orator to redeem, there must be some statute regulations, otherwise he cannot redeem unless the estate is necessary to pay debts.

2. If the orator is entitled to redeem, still he is not entitled to an account against this defendant, for rents and profits, according to the prayer of the bill. The answer admits the execution of the mortgage, but denies all payments. The mortgage was made in 1809. Somewhere from 1810 to

1812, the mortgagor absconded. Can a payment be fairly presumed or claimed under such circumstances? Stewart v. Nichols, 5 Eng. Con. Ch. R. 407-8. The possession was vacated by the mortgagor in 1812 and continued so until 1816 or 1817, when Barton took possession.

The right to redeem rests in the heirs of Leach, if in any one, and as the defendant, Allen, shows, that he is the assignee of the heirs of Leach, and empowered to hold their interest, it presents this question; can an administrator call on heirs to advance money to reedeem an estate for his use unless he should first, by his bill, state, at least, that the interest of the creditors requires it. In order to do justice in this case and pass upon all the interests in the case, the court will pass

ORLEANS, March, 1842.

upon both the deeds from Leach's heirs, to wit, the one to Allen and the one to Kimball. The court, by reference to these deeds, can regard this as no other than digging up a stale claim, on Kimball's part, without equity, right or adm. of Leach, justice.

The opinion of the court was delivered by

BENNETT, J.-It seems, by the report of the master, and the facts stand admitted, that the notes were executed in June, 1808, by James Leach to William Barton, the father of the defendants, payable at the times stated in the bill, and the mortgage in January, 1809; that John Kimball, being the agent of William Barton, as such agent, leased the premises from the first of May, 1828, to the first of May, 1836, and that William Barton died in May, 1831; and in August, 1836, Kimball settled these rents with Heman B. Allen, one of the defendants, and paid to Allen, for rents received by Kimball, eighty dollars. The rents were allowed up to the first of May, 1841, at $216.96. It is said that the improvements from which the rents accrued were not made by James Leach, the mortgagor, and therefore the mortgagee should not be charged with such rents. It appears that in 1817 or 1818 one Alexander Benton entered upon the Leach lot,—no one at that time being in possession,--and cleared about eight acres and occupied that, and also what had been cleared by Leach, but claimed no interest in the land; and, after occupying about three years, sold his farm to Albee, but not the Leach lot; and after this Albee occupied that lot. Though it would not be right to charge the mortgagee with rents arising from his own improvements, yet Benton and Albee were not in possession under the mortgagee, but in their own wrong, and their improvements would enure to the benefit of the mortgagor. The administrator of Albee could convey no right to them, because Albee, being a tort-feasor, had no right to them in his life time, and the administrator did not act by order of the probate court.

It is said that this bill cannot be maintained by the administrator of Leach. In England, where the real estate, upon the death of the intestate, passes directly to the heir, and is not assets in the hands of the administrator for the payment of debts, the bill should be brought by the heirs. But, with VOL. XIV. W. R. IV. 65

Merriam,

v.

Barton et al.

ORLEANS,
March,
1842.
Merriam,

v.

Baxter et al.

us, the law is different.

The action of ejectment is given to the administrator, and the heirs cannot have the action until there has been a division of the estate, under a decree of the adm. of Leach probate court, in cases where a division is necessary. It is the duty of the administrator to pay off the debts out of the personal estate, if sufficient for that purpose, and prepare the estate for distribution among the heirs. To discharge this duty he must, of necessity, be permitted to maintain a bill of this description, as the only means of ascertaining what may be due, if any thing, on the mortgage.

It is said that no account should be ordered after so great a lapse of time. By this I suppose is meant that, in this particular case, the equity of redemption is barred. In England an actual possession of twenty years is necessary in the mortgagee to bar the equity. In this state, it is true, fifteen years is sufficient. There is no ground for contending that Benton or Albee were in possession under William Barton, the mortgagee, so as to make their possession his. The master finds the reverse. This bill having been brought in 1837, the mortgagee's possession is limited to a little less than nine years before bringing the bill. Though there is, and will be, difficulty in taking the accounts in a case like this, yet, the bill should not, for this cause, be dismissed and the equity of redemption barred. The mortgagee had at all times the right of foreclosure, and if he suffers in taking the accounts, from lapse of time, he must impute it to his own negligence.

This court sits as a court of error to revise the final decree of the chancellor, and those exceptions to the report of the master, which are addressed to his discretion, cannot be revised in this court. Several of them are of this character, which need not be particularly noticed.

It may also be remarked that in taking the accounts the master, and not the court, is to settle the facts, and his finding is conclusive, unless the report, for good cause, shall be set aside. It is objected that the accounts before the master were not verified by the oath of the party, as required by the forty first rule of our chancery practice.

To give the right to examine a party before the master, upon common chancery principles, requires a special order to that effect, and the object of the rule was to dispense with

ORLEANS,

March,

1842.

the necessity of a special order, and did not contemplate a case of this kind. Besides, it can only be matter of discretion in the chancellor to recommit the report upon such an Paddock & objection as this.

We do not think the decree of the chancellor precisely as it should be. All that the orator can claim is to have the mortgage cancelled. So much of the decree as directs a conveyance of the premises by the defendants to the orator must be reversed, and, in lieu thereof, it is ordered and decreed that the defendants, and all persons claiming under them, be perpetually enjoined from setting up, either at law or in chancery, any title or claim to the premises, under or by virtue of such mortgage deed. The case is remitted to the court of chancery, to be proceeded with accordingly.

Riddle

v.

Ames.

PADDOCK & RIDDLE v. MICHAEL U. AMES.

Where one employs another to purchase an article of property for him of a given description and price, and to pay for it, which is done, the price may be recovered in an action of book account, even where the vendor never accepted the delivery of the article.

Judgment to ac

THIS was an action of book account. count having been rendered by the county court, an auditor was appointed who subsequently reported, in substance as follows;-Sometime in the month of April, 1840, the defendant called at the plaintiffs' shop in Craftsbury (where Riddle, one of the plaintiffs, was making and vending tin ware,) and wished to purchase two tin trunks; that Riddle told him that he could not conveniently make such trunks as the defendant wanted, but could procure them for him of Sweet & Co. of Johnson; that it was then and there agreed between the parties that Riddle should procure the trunks of Sweet & Co., and that defendant should call soon afterwards and take the trunks and pay for them; that Riddle then told the defendant the price of the two would be about five dollars; that defendant then left the plaintiffs' shop and never called