The plaintiffs' mortgage was made in 1881, by the defendant Thomas P. Waterman. The defendant Wood has no title. He is a creditor of the mortgagor's father, Silas Waterman, a former owner of the land, who died in 1878, and of whose estate no administrator has been appointed. If an administrator should be appointed, and if he should apply to the judge of probate for license to sell this land for the payment of Wood's debt (G. L., c. 201), the question could be raised whether license should be *Page 89 granted. The statutory proceeding in the probate court is the proper action for the trial of that question. Joslin v. Wheeler, 62 N.H. 169; Hatch v. Kelly, 63 N.H. 29.
Decree for the plaintiffs.
BINGHAM, J., did not sit: the others concurred.