Billings Palmer, Administrator vs. Ensign D. Stevens & another; Ensign D. Stevens vs. Lovet Taft & another, 11 Cush. 147

Dewey, J. The position taken in the defence, that an administrator of a mortgagee of real estate, who shall have obtained judgment and possession under it for foreclosure, cannot maintain an action of trespass against one of the heirs at law of the mortgagee for entering thereon and cutting and carrying away wood and timber, cannot be maintained. The objection, as presented, is, that the relation of these parties to each other, as respects such real estate, will not permit such action.

It is said to be so, because the plaintiff, as administrator, is seised of the mortgaged premises in trust for those heirs at law of the mortgagee who would, by the statute of distributions, have been entitled to the money, had the premises been redeemed, and that being thus holden in trust for the heirs, they cannot be liable as trespassers. The authority of such administrator over mortgages of real estate, in which the intestate was mortgagee, and the nature of his interest, is regulated by Rev. Sts. c. 65, §§ 11-15.

But these provisions do not authorize the individual who may be the heir at law, on the final distribution of the assets of the intestate, to interfere with the possession of the administrator; much less to take and convert the property to his own use. During the three years’ possession to foreclose the mortgage, the possession is wholly in the administrator. If the estate is redeemed, the money is paid to him, and he is to account for it as personal estate.

It is only in cases where the land shall not be redeemed, or where it may not have been sold by him for payment of debts or legacies, or charges of administration, that it is to be assigned and distributed among the same persons and in same proportions as the personal estate of the intestate. In the mean time his relation to it is the same as to personal estate. The right of possession is exclusively with him, and not in the heirs at law, and any interference by them would subject them to an action by him. We have thus far considered the case as though Jonathan C.

Stevens, at the time of the alleged tortious acts, held the interest of a son and heir at law of the mortgagee, and assuming this to be so, we are of opinion that the action might be maintained against him. In fact, however, it appears by the case stated, that he had parted with his interest before the committing the alleged trespasses in carrying away the wood and timber. This latter view of his relation to the mortgaged estate, we have not deemed it important particularly to consider. Independently of this objection, the defendants claimed to have a good defence by a title acquired by Jonathan C.

Stevens, by virtue of locations made under deeds of certain proprietors of Lower Housatonic Proprietary. The plaintiff objected to the validity of these locations, and among other grounds, for the reason that there was no legal organization of the said Proprietary at the time said locations were made, and so nothing passed thereby.

In regard to this part of the case, it seems proper that the defendants should have the opportunity to present their case upon all the competent evidence that can be offered tending to show the legality of the organization in 1843, and that it is not to be confined to the mere book referred to in the case, but all other papers that can be properly called in aid to show the nature of the organization. The book itself will require evidence of its authenticity, and so also the other papers which the defendants now offer as a part of the official doings of the Proprietary.

It seems to us to have been the purpose of the trial to present as a question of law the points of the legal organization of the Proprietary in 1843, but the extent of the evidence on this subject being now a .matter of controversy, the court have thought proper in this, and the case of Ensign D. Stevens v. Taft & another, involving the like question, to set aside the verdict, and order a new trial for the purpose of presenting all the evidence upon that point. Various other objections were taken as to the evidence offered to prove the execution and acknowledgment of certain deeds introduced into the case.

Many of these may be obviated on a new trial, and need not be now settled. One of these, which will perhaps arise again, we have considered. It is the objection taken to the deed of Peter A. Fundy to Joseph Goodrich, recorded in 1802, purporting to have been acknowledged before Seth Jenkins, mayor of the city of Hudson. This deed, it is said, was not legally acknowledged, and therefore not legally recorded. Neither party has produced any evidence of the laws of New York at that period, showing the extent of the authority of the mayor of Hudson.

It is well known that those officers formerly exercised more extensive powers than at the present day, holding mayor’s courts, &c. The court are of opinion that in reference to a deed recorded fifty years since, upon the acknowledgment before the mayor of the city of Hudson, that it may be presumed to have been properly acknowledged before such officer, and a registered copy may be read in evidence, if there be no other objection than the want of proper acknowledgment before a magistrate.

The St. of 1783, c. 37, § 4, authorized its acknowledgment before a justice of the peace, or magistrate of any of the United States, or in any other state or kingdom in which the grantor may reside. An American consul at a foreign port was held to be a magistrate within the meaning of this act, in the case of Scanlan v. Wright, 13 Pick. 523. For the reasons we have stated, the verdict is to be set aside, and a New trial had.