The only question here, it appears to us, is a question of fact." If the administrator sold the equity, in terms, that is, the estate subject to the mortgage, then he had no right to pay the mortgage debt.. But if he sold an estate, before he could give a title, he must discharge the incumbrance, and the difference was all which could go into the assets of the estate. Whether in form he credited the estate with the gross sale, and charged the payment of ¿he -sum necessary to redeem it, or whether he credited the ba anee only, was a mere difference in the form of keeping the account.
It is stated as among the reasons of appeal, that the administrator paid the mortgagee his whole debt, in full, whereas he *442should have paid him a dividend only. But the mortgagee had no occasion to prove his debt, unless he claimed a balance beyond the value of his mortgage. He could not be divested of bis security in the mortgage, until his debt was paid in full; and the administrator paid him his debt, not because he was a creditor, but to redeem the mortgaged property and save something for the estate. It was paid out of the avails of the sale, and not of the assets of the estate. Had the administrator paid the mortgagee any thing beyond the clear proceeds of the sale of the estate, it would have been a payment in his own wrong, and could not be allowed him in account.
Nor is it material, that this mortgage was not known to the parties at thu, time of the sale, although it might have been discovered by searching the record. The mortgage existed, and the administrator, in order to receive his money of the purchaser, must make a good title; and must discharge the incumbrances, whatever they were; and to do this he must pay the debt for which it was mortgaged. If the incumbrances exceeded the value, there was nothing for the administrator to receive.
Decree of the judge of probate affirmed, and the case remitted to the probate court.