Concurring opinion by
Strong, J.— I concur in the judgment given in this case, though my views of one of the questions differ from those of my brethren.
The first and leading one is whether a scire facias on the mortgage could he sued out and maintained by the executors of the will of the surviving mortgagee, or whether the right of action was exclusively in the administrators de bonis non of Peter Kunkel, deceased. The mortgage was given on the 24th day of April 1818, to George Hoyer and Christian Kunkel, to secure to them the payment of $627.40 for the use of the heirs of Peter Kunkel, deceased, on the death of Eve Kunkel, his widow, with interest payable annually to her during her life. The obligees were denominated administrators of the goods, &c., of Peter Kunkel, deceased, hut this was a designation of persons, not of the right in which they held the mortgage. It no more fixed a trust upon the transaction, than would the addition of any official title to the name of an obligee determine that he was a trustee. It was mere surplusage, which might have been disregarded in pleading and which was unmeaning in substance. The declared trust negatives the existence of another not expressed. The mortgage was expressly declared to be for the use of the heirs of Peter Kunkel, not for the use of the administrators as such, for administration, nor for any use of the decedent’s estate. The record does not show for what consideration it was given, but it may he inferred that it was to secure the purchase-money of land sold under proceedings in partition. Certainly the sale was not for the payment of debts. The postponement of the day of payment until after the death of the *94widow of Peter Kunkel shows that. It was not a sale, then, for administration, and the obligees did not hold the mortgage as administrators. They held it as trustees for the heirs. If, therefore, there is no Act of Assembly to change the common law rule’ in such a case, the right of action upon the mortgage was in the executors of the surviving mortgagee, both of the mortgagees having died, and the scire facias was correctly sued out by Philip Smyser and Sarah Hoyer, those executors.
The plaintiffs in error, however, insist that the right of action was taken away from the executor of the surviving mortgagee by the 31st section of the Act of the 24th of Eebruary 1834, and that suit can now be brought only by an administrator de bonis non of Peter Kunkel, deceased. That section enacts that “ administrators de bonis non, with, or without the will annexed, shall have power to demand and recover from their predecessors in the administration, or their legal representatives, all moneys, goods, and assets remaining in their hands, due and belonging to the estate of the decedent, and to commence and prosecute actions upon promises made to such predecessors in their representative character, and to sue forth and defend writs of error, writs of scire facias, and writs of execution upon judgments obtained by or in the name of the executors or administrators, into whose place they may have come, and also to proceed with and perfect all unexecuted executions which may have been issued thereon at the instance of such predecessors.” The purpose of this act was to give to administrators de bonis non the completion of an administration commenced, but not completed by their predecessors. Hence, they were empowered to recover moneys, goods, and assets due and belonging to the estate of the decedent, and to sue upon promises made to their predecessors in their representative character. Whatever the first administrator was entitled to as a personal representative of the intestate, whatever was covered hy his administration bonds, whatever was due and belonging to the estate of the decedent, must now pass into the hands of the successor in office of the first administrator. But the act is inapplicable to this case. The money secured by this mortgage is not money due and belonging “to Peter Kunkel’s estate.” It belonged to the heirs, and their receipt of it from the mortgagor, even without the consent of the mortgagees, would have extinguished the security. How, then, can an administrator de bonis non have any title to it? What he may recover is what it is his duty to administer. Nothing else. This money, if it were in his hands, he would hold as a naked' trustee; not for the estate, but for the widow and heirs: Unangst v. Kraemer, 8 W. & S. 391. It would be strange, indeed, if the legislature intended an administration de bonis non to be raised up in such a case, when not a dollar of the money, if recovered, *95would be assets for the payment of debts, and when all would go to the heirs in their own right. Partition of realty is not administration of an estate. Neither the owelty awarded, nor the price of the land when sold, after refusal of the heirs to accept it at the valuation, belongs to the administrator in his representative character. It is true, that lands in this state are assets for the payment of debts, but they are not personal assets, and they cannot be resorted to until after the personalty has been exhausted. When the debts have been paid and the personalty has been distributed, administration has closed, and securities for the price of lands sold belong to the heirs. They are no longer assets under the control of a personal representative of the decedent. Here it appears that Peter Kunkel died in 1794, and this mortgage was given for the use of his 'heirs in 1818. It is not now for the mortgagor, or any one claiming under him, to deny that administration upon the estate had then closed. This disposes of the 1st, 5th, 6th, 8th, 9th, and 10th assignments of error.
Entertaining the opinion, as I do, that the original scire, facias upon the mortgage was rightly sued out in the name of the defendants in error, I need not consider the question, whether the plaintiff in error could now avail herself of a mistake in the legal parties, if a mistake had been made.
The next question is raised by the 2d and 9th assignments, and may be dismissed with a single remark. The evidence offered and rejected had no possible bearing upon the issue between the parties. Had it been admitted, it would have had no tendency to show either that the mortgage was not a valid encumbrance on the land, or that it had been paid, or released, or in any way discharged.
Another question raised by the plaintiffs in error grows out of the following facts. The first scire facias upon the mortgage was sued out upon the 8th of April 1848, within less than a year after the death of Eve Kunkel, widow of Peter Kunkel. To the scire facias, Dewitt C. Brooks, executor of the will of John Brooks, the mortgagor, was made defendant, and he accepted the service and confessed a judgment. It-is now contended that his confession of the judgment was a nullity, because he had at the time no interest in the land bound by the mortgage, and because the scire facias issued before the expiration of a year and a day after the debt fell due. This is certainly a very extraordinary position to be taken by the defendants below, one of whom is the administratrix de bonis non of the mortgagor, and the remainder of whom are terre-tenants claiming under the mortgagor by title subsequent to the mortgage. Dewdtt O. Brooks was the proper person to be made defendant in the writ of seire facias. He was the personal representative of the mort*96gagor. No rule of the common law or Act of Assembly required notice to be given to the terre-tenants. It must be conceded that suing out the writ was premature, but it was an irregularity which could be waived. The statutory cesset is a provision for the benefit of the mortgagor, of which be may or may not avail himself at his pleasure, and the executor is clothed with the powers of his testator. But it is said Dewitt C. Brooks could not waive it to the prejudice of the terre-tenants. If it were so, does that make the judgment void ? How has it injured them ? They can make defence now to any claim for the payment of the debt, which they could make were the present scire facias upon the mortgage itself, instead of the judgment. If the mortgage has been paid or released, they are not precluded from showing it. But clearly when fourteen years have elapsed after the debt became due and after judgment was obtained, it is not for them to set up a mere irregularity in the rendition of the judgment, which does not prejudice them. At any time within seven years they might have come in and complained of the irregularity. It is too late now, and if it were not, it could do them no good.
Nor was there any error in withdrawing from the jury the question of fraud. There was nothing in the evidence received, or in that offered and rejected, that tended to show fraud. The opinion of the witness, Frederick Pace, was but a mere conjecture, upon which the jury had no right to act. None of the matters enumerated in the 8th point are indices of fraud or show that either the executor of the mortgagor, or the assignee of the mortgage, did anything prejudicial to the terre-tenants. Under proper instruction the jury have found, that neither the mortgagor, nor his executor, nor the tenants, have paid the mortgage, and it is not pretended that the debt was not due.