In order to maintain this bill, the plaintiffs, must prove that the title they offer to convey is good beyond a reasonable doubt, and will not expose the defendant to litigation. Fry on Specif. Perf. 253, et seq. Richmond v. Gray, 3 Allen, 25. They claim title as the heirs of Newell Sturtevant, deceased. He derived his title from Charles J. Fox, by deed dated September 19th, 1850. The only defect that appears to have existed in this title was a mortgage previously made by him to Samuel K. Williams, to secure a promissory note. Therefore Newell Sturtevant took the equity of redemption, and nothing more.
On the 20th of December, 1852, Williams assigned the mortgage and indorsed the note to Sturtevant. If it had been a simple assignment, the title thus acquired would have been perfect. But the assignment was to him as “ trustee,” and the note was also indorsed to him as “ trustee.” This is a notice that he took the note and mortgage in trust, and raises a presumption that a trust existed. What the trust was does no4 appear, nor does it appear that any written declaration of trust is on record or in existence.
But it is obvious that the property purporting to be thus held *527in trust was the sum of money due on the note, and the mortgage was merely a security for the money. The debt is always the principal, and the mortgage is merely the accessory. If the debt is assigned without the mortgage, the mortgage is held in trust for the assignee. Parsons v. Welles, 17 Mass. 425. A valid trust of chattels may be created, established and proved by mere paroi declarations, as well since the statute of frauds as before. Hill on Trustees, 57, and qases cited. Here then is a notice of a trust which need not appear of record; and of such a character that it would not be extinguished by the union of the legal and equitable title to the land in Newell Sturtevant.
As the mortgage has not been foreclosed, it remains apparently a trust of a chattel, secured by the mortgage. On the decease of Sturtevant, the legal title to the note and mortgage passed to his administrator and not to his heirs, because he held it in trust. The heirs hold the equity of redemption subject to the mortgage, and the title which they offer to convey is apparently subject to the mortgage. Undoubtedly the administrator may collect the note and discharge the mortgage by which it is secured, and he will then hold the money subject to such trust as may be established, and the title of the plaintiffs to the land will be perfect. But though he has permitted the plaintiffs, who are the heirs, to bring the note and mortgage into court, yet he is not a party to the suit, nor has he accepted payment or given a release ; and if there is a trust they are not authorized to receive the money or discharge the incumbrance.
As the parties have submitted the case upon bill and answer, in which no more facts than those above referred to are established, it does not appear that the title which the plaintiffs offer to make is unincumbered.
They allege in their bill that no trust in fact existed ; and that if it ever did exist it has been discharged; but they fail to establish the fact. If either fact were true, it would have been easy to procure the removal of the cloud from their title by taking up the note and procuring a discharge or release' from the administrator. But as this has not been done, the cloud remains. Bill dismissed loith costs.