Renaud v. Conselyea

—Had the action to foreclose the mortgage described in the complaint in this case, been brought during the lifetime of Mr. Paget, the mortgagee, it might have been brought by him in his own name; the words “ administrator, &c.,” added to his name being a mere descriptio persona (Merritt v. Seaman, 2 Seld., 168, and cases there cited). The legal title to the security was in Paget individually. He may or may not have been responsible to the estate of his testator, by reason of his having taken a security in that form. That question, however, is not here presented. The only point now before the court is, whether the legal title was vested in Paget individually, and passed at his death to his personal representatives, so that a payment to them by the mortgagor will discharge the mortgage and satisfy the lien;—if so, there must be the end of *282this defence. Per it is no concern of these defendants, so they are discharged, what may he the rights of Devoe’s estate to the moneys when paid to the plaintiff. They can only ask—Has the plaintiff the legal right to receive the mortgage debt and cancel the mortgage ? That Paget individually, and not as administrator, could have done this, is clear.

Then, did that right pass, on his death, to his personal representatives ? This precise point is not decided in Merritt v. Seaman, nor in any other case cited that I am aware of. But it seems to be a necessary corollary of the main point decided in that case. It more conclusively follows from the positions laid down by the court in Biddle v. Wilkins (1 Pet., 686).

I must, therefore, overrule the objections of the defendants to the admissibility of the bond and mortgage, the will of Mr. Paget, the letters testamentary therein, and the assignment of the mortgage to the plaintiff. The evidence adduced by the defendant then becomes immaterial, and must be excluded. Exceptions to these rulings are noted, as duly taken by the defendants.

The plaintiff is entitled to judgment, according to the prayer of the complaint. The amount due this day for principal and interest is $1,513.33. The plaintiff may have an allowance of five per cent, on this sum, besides his specific costs.