State use Hawkins vs. Belt and Berry, 7 G. & J. 444

Dorsey, Judge, delivered the opinion of the eourt. The court below were called on to say whether upon the statement of facts before them, the appellees were answerable for the money paid to Peach, the trustee. Upon that statement of facts we think the county court were right in giving judgment against the plaintiff. The statement discloses no breach of the condition of the bond, on which the action was founded.

The receipt of the money paid, without a sale of the mortgaged premises, was not a duty imposed upon the trustee by the decree under which he acted; nor was he made accountable therefor, “ by any further decree or order in the premises.” Under this decree he had no authority to receive it. His receipt of it as trustee has not been ratified by any subsequent decree, or order of the Chancery court. The payment remained at the risk of the mortgagor, until some subsequent decree or order of ratification had recognized it in the hands of the trustee, at the risk of the mortgagee.

In the latter case, the mortgagor and mortgaged premises would have been discharged from the debt. In the former, they would still have remained liable. This view of the responsibility of the appellees renders it unnecessary to examine the other questions introduced in the argument of this cause. JUDGMENT AEEIKMED.