Luther Merriam, Administrator de bonis non of the estate of James Leach, v. John B. Barton, Heman B. Allen and Sarah, his wife, Apollos Cushman and Anna, his wife, Benjamin Barton, - Chapin and Lucy, his wife, Eliza Barton, Caroline Barton, Lucy Barton and William Barton, 14 Vt. 501

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, bad 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 theiieir, 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 us, the law is different. The action of ejectment is given to tlie administrator, and the heirs cannot have the action until there has been a division of the estate, under a decree of the . . . . probate court, m cases where a division is necessary.

It is 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 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 objection as this. We do not think the decree of the chancellor precisely as it should be. AH 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 titleor 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.