This case presents several questions, to which I shall attend, in the order in which they naturally arise.
The covenants, on which the plaintiff has founded his action, are contained in a mortgage deed, as a security of the title to the estate mortgaged. The grantors covenanted, not merely *384that they were seised of the premises, but that their seisin was of an indefeasible estate in fee-simple, and that they had good right to convey this quantity of interest.
In the first place, the defendant objects, that the above covenants in a deed of mortgage, are not valid.
It is not a little extraordinary, at this late period, and in the face of the ancient and universal practice on both sides the Atlantic, to accompany deeds of mortgage with the supposed exceptionable covenants, that such an objection should be made. In the absence of established principle and judicial determination, the practice alluded to, is the strongest possible expression of opinion, that the covenants in question are legal. It is the uncontradicted voice of the civilized world, so far, at least, as the common law extends.
That such covenants are useful as a security to titles, is undeniable; and that they are legally admissible, is too clear to be questioned. As it is an universal principle relative to property, that every person may freely use, enjoy and dispose of all his acquisitions, without any controul, save only by the laws of the land; so, for the same reason, it is incontrovertibly settled, that he may bind himself, by any engagement, which the law does not prohibit. 1 Bla. Com. 136. Shep. Touch. 159. In this essentially consists civil liberty, which is the power of acting as one thinks fit, so far as this license is not restrained, by natural or civil law. From this it results, as a principle, that if the subject of a contract be not evidently useless, and be legally and morally possible, the contract is valid.
The plaintiff has an interest in the title of his grantor; and to render him secure, covenants of seisin and of right to convey are both useful and necessary. Those covenants relate directly to the title; and to guard this point, whatever the nature and extent of the estate granted may be, they are of obvious importance. As there is no law prohibiting the covenants in question, undoubtedly they are legal.
It was next insisted on, in the argument, that the covenants of the defendant have not been broken. It is an established principle, that the covenants of seisin and of good right to convey, if the grantor was not seised, and had not the right asserted, are broken instantaneously on the delivery of the deed. Mitchell v. Hazen, 4 Conn. Rep. 495. 510. Mitchell v. Warner, 5 Conn. Rep. 497.
*385Admitting this, it, however, has been contended, that Incas-much as one of the grantors was in possession of the mortgage-ed premises, seised of an estate for life, the covenants have not been broken; and this position seems to derive countenance from certain determinations made in the state of Massachusetts. It has been said by Chg. DJ. Parsons, in Manton v. Hobbs, 2 Mass. Rep. 433. that to sustain a covenant of seisin, it is not necessary “to shew seisin under an indefeasible title; that a seisin in fact is sufficient; and that if, at the time the grantor executed the deed, he had the exclusive possession of the premises, claiming the same in fee-simple, by a title adverse to the owner, he was seised in fee, and had good right to convey.” To the same effect were the opinions expressed in Twambly v. Henley, 4 Mass. Rep. 441. and Prescott v. Trueman, 4 Mass. Rep. 627.
If these determinations are considered as law, they will not aid the party citing them. The seisin in fact spoken of, must be conjoined with a colourable claim to the fee-simple. But no such claim, in this case, is pretended.
Although my judgment might safely be rested on the inapplicability of the decisions cited, I am constrained to observe, that notwithstanding the veneration I entertain for the highly accomplished jurist, who expressed the above opinions, I cannot yield to them my assent. That which shows covenants of seisin and of right to convey, to be broken, is their falsity. If the covenants are true, they remain inviolate; if they are not true, they are broken. On the same principle, if they are entirely false, they are wholly violated; and if partially untrue, they are broken but in part only. All this is self-evident. Although the covenantor should have had the actual possession of the premises, and an ideal or imaginary right founded on a supposed title that was merely colourable, yet this is not a legal seisin in fee; and nothing short of this will support a covenant that the grantor is seised in fee-simple, because nothing short of this proves the covenant to have been true. This construction necessarily results from the unequivocal words of the covenantor, and the unquestionable object of the covenant. That was security to the purchaser, to the extent of the title purporting to have been conveyed. The determinations on which I am expressing an opinion, are opposed to the plain intendment of the most unambiguous expressions; to the object of the parties in making the covenants in question; and to their utility, by reducing them to little more than a nugatory agreement. A seis-*386in in fact of an estate in fee-simple, if the word seisin intends any thing more than possession, is an expression without meaning, where there is no seisin in law. In the nature of things, there is but one species of seisin in fee, and that necessarily is, the possession of an estate conjoined with such a legal interest as the term fee-simple denotes. "The covenant for title," as was said by Lord Ellenborough, in Stowell v. Richards, 11 East, 633. 642. in reference to a covenant of good right to convey, "is an assurance to the purchaser, that the grantor has the very estate, in quantity and quality, which he purports to convey, viz. in this case, an indefeasible estate in fee-simple." Now, a seisin in fact, as it has been called, is not an indefeasible estate. and a seisin for life, is not an estate in fee.
The question I have been discussing, has been decided by this Court, in Mitchell v. Hazen, 4 Conn. Rep. 495.
The defendant has attempted to show a seisin in fee, under a deed executed by Lois Fenn and Joel Sanford, the administrators of Job Fenn, to Sarah Sturdevant. An objection to the competency of this deed, was made by the plaintiff, on the ground of its invalidity, by reason of its not showing a sufficient authority in the administrators to sell and convey the intestate’s estate; and for the further reason, that the deed does mot purport to be in execution of a power, but to grant the estate of the administrators only. The deed was not held to be void, but eventually was admitted, by the court, after the probate records were exhibited in evidence, showing, in the opinion of the judge, that the administrators were duly empowered to sell and convey the intestate’s estate.
It is an established principle, that the authority, by virtue of which an administrator is empowered to sell and convey estate, must appear on the deed of conveyance, and with such certainty, that the act done, shall visibly be warranted by the power conferred. Rex v. Austrey, K. B. East, term, 1817. 3 Stark. Evid. 1198. Rex v. Croke, Cowp. 29. 2 Swift’s Dig. 789, 790. Oliv. Convc. 178. And although in some cases, it has been held, that the authority need not be referred to, when the act done is of such a nature, that it can have no operation, unless by virtue of the power; (4 Cruise’s Dig. 240. 3 Johns. Ch. Rep. 551. 6 Co. 17. b. 2 Browns Chan. Rep. 300. 8 Ves. 609. Com. Dig. tit. Poiar. C. 4.) yet this principle has never been supposed applicable to the conveyances made by executors and administrators. Griswold v. Bigelow, 6 Conn. Rep. 258.
*387The deed of Fenn and Sanford, which, on the face of it, should exhibit an authority in the administrators to sell and convey the intestate's estate, shows no such power. It merely asserts, that they are the administrators of Job Fenn, late deceased, and that "by order of the court of probate" they grant the estate in question. It likewise contains a covenant, that the said Fenn and Sanford are seised of the premises "as administrators on the estate of the said deceased." All this falls far short of showing a legal authority for the sale and conveyance. The court of probate, it seems, ordered the estate to be sold; but in what manner? It does not appear, that there was an exhaustion of the personal estate of the deceased; or what amount was to be raised by the sale; or whether the estate was to be sold at auction, or by private sale; nor indeed, that any part of the probate order was complied with. The covenant of seisin as administrators, is a legal impossibility, and supplies nothing to the deficiencies before enumerated.
It is unnecessary to enter on an examination of the deed, in order to ascertain, whether Fenn and Sanford intended to grant their own property, or that of the deceased; but on a view of this instrument, signed by them, in their individual characters; covenanting that they were seised; and that they and their heirs would warrant and defend the premises; and making reservations to themselves and their heirs, I think, on fair construction, it must be considered as a conveyance of their estate. The case of Griswold v. Bigelow is, in no material respect, distinguishable from this.
The probate records were recurred to, in order to ascertain whether the before-mentioned administrators, were authorised to sell and convey the estate of the deceased. I have already shown, that the authority must appear on the face of the deed; and that, in the absence of it, the deficiency cannot be supplied. But the records of the court of probate adduced in evidence, recoil on the party exhibiting them. An authority given to executors or administrators to sell, is a personal trust or confidence, and must be strictly pursued. Berger & al. exr. v. Duff, 4 Johns. Chan. Rep. 368. Hence, if they transcend their authority, in any essential particular, their act is void. Com. Dig. tit. Attorney. 10, 11, 12, 13, 14, 15. tit. Poiar. C. 6. Undoubtedly, there are cases in which chancery will correct the excess, and give operation to the residue; (4 Cruise’s Dig. 246.) but in a court of law, this is never done. The defective exe- *388cution of powers is relievable in equity alone. 4 Brown's Chan. Rep. 382. 1 Madd. Chan. 44. 358. The records of probate manifestly prove, that the administrators exceeded their authority. They were empowered to raise the sum of 174 dollars, 99 cents; and they have sold, and granted by deed, estate to the amount of 188 dollars. They did not strictly execute the power delegated to them; and of consequence, their proceeding is void. The future decree of probate relative to the surplus, cannot validate an antecedent erroneous proceeding, nor authenticate an invalid deed.
Cases have been cited, relative to the necessity of an appeal from the decrees of probate, in certain instances, supposed to be applicable to this case; but they have no bearing on any question before the Court. They all proceed on this unquestionable principle, that a decree of a court of probate, on a matter within its jurisdiction, cannot be inquired into, and reversed, collaterally. 1 Day 170. 3 Day 318. 1 Conn. Rep. 467. But the inquiry concerning the competency of Fenn and Sanford’s deed, has no relation to any determination of a probate court.
The above deed should have been repelled, and not admitted in evidence.
The covenants in the mortgage deed, being valid, and broken, I am next to examine the defence.
In the first place, the defendant has pleaded accord with satisfaction; and this plea he has endeavoured to support, by showing a release from the mortgagor to the plaintiff, of the mortgaged premises, and the delivery up of the note described in the condition of the mortgage deed. That this extinguished the debt, is not disputed; but it is still a question, whether the mortgage title remains in force, notwithstanding; and of consequence, the covenants to secure it. The case of Baldwin v. Norton & al. 2 Conn. Rep. 161., is, on this point, conclusive. One Horace Baldwin mortgaged certain premises to Timothy Leonard, as collateral security to a note of 500 dollars. Afterwards, Baldwin (the mortgagor) mortgaged the same estate to Ashbel Baldwin. Subsequently to this, Horace Baldwin released his right in the premises, to the first mortgagee, who gave up the aforesaid note, and then Ashbel Baldwin, the second mortgagee, brought his bill of foreclosure against the alienee of Leonard, and claimed, that the estate was exonerated from the prior lien of the first mortgagee, by the satisfaction *389of his debt. The court, however, distinctly admitting the extinguishment of the debt, adjudged, that the mortgage title remained, notwithstanding the release, and that the second mortgagee, before foreclosure, must exonerate the land from the lien existing by virtue of the first mortgage. The principle advanced was this; that the taking of the mortgaged premises for the debt, and relinquishing of the remedy on the note, was no extinguishment of the mortgage title. If the payment of the note, by a release to the mortgagee of the premises mortgaged, had annihilated the mortgage title, the precise effect, as was forcibly said by Gould, J., in the above cited case, would have been, to take the title from the first incumbrancer, because his debt had been paid, and at the same time, to deprive him of what he had received in payment, because his title was gone. Equal injustice will arise, in this case, if the mortgage title is considered as extinguished. The debt is paid; the release is of no value, for the want of title in the releasors; and unless the mortgage title secured by covenants remains, the mortgagor is entirely defrauded of his demand.
The above determination of the court is conformable to the established principles of the common law, and of equity.
The mortgage title, and of consequence, the covenants in the mortgage deed, were not annulled, by the direct agreement of the parties. That was pointed, solely, at the satisfaction of the mortgage debt. If, then, the title is extinguished, it must be, by operation of law. The law applicable to this subject, is the doctrine of merger; and, as a general rule, it must be admitted, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated, or in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. But to this rule, there is an exception, where justice and general convenience require both the lesser and greater title to be consistent. Thus, a man may have in his own right, both an estate tail and a reversion in fee, and the former shall not merge in the latter. 2 Rep. 61. 8 Rep. 74. It was necessary to establish this doctrine, or estates tail, contrary to the policy of law, would be put within the power of the particular tenant, by procuring the fee, and thus barring the entail. 2 Bla. Comm. 178. In Stevens v. Brittredge, Sir T. Raym. 37. it was said, that there is no rule or case that there shall be a merger, where the estates may stand, and the taking it so, is only to preserve the *390intention of the parties. In the case of Gardner v. Astor, 3 Johns. Chan. Rep. 53. the principle is laid down very accurately, and with a just limitation. It is said, in this case, where the equitable and legal estate are united in the same person, the former is merged in the latter, unless it is made to appear, that he has some beneficial interest, in keeping the legal and equitable estates distinct; and in Forbes v. Moffatt, 18 Ves. 384. this was held to be a question of declared, or presumed, intention. If the decisions of courts of law and of chancery, on the above subject, are not altogether identical, yet the principles advanced, are nothing more than the legal doctrine applied to estates tail, with a reversion in fee, in the same person, and are embraced by the decision in Baldwin v. Norton.
To prevent the merger of the less estate into the greater, or of an equitable into a superior legal title, when both are vested in the same person, as has been shown, there must be a good reason; and such an one exists in the present case. Mortgage deeds generally, if not universally, are secured by covenants of title; and the equity of redemption is extinguished, by release or foreclosure. In the event of a release from the mortgagor, it cannot be presumed to have been the intention of the parties, to extinguish the mortgage title; and in both events, of release and foreclosure, it would be unjust and inconvenient to hold this as legal doctrine. The title to the estate may be found fatally defective; and of this the case under discussion is a full illustration. That the debts secured by the mortgage should faithfully be paid, was the intention of both parties; and to this end, the release was executed, and the note given up. The mortgage title, guarded by covenants, is the plaintiff’s only security; and it would be flagrantly unjust, and in opposition to general convenience, to hold, that the title by mortgage should merge, and the plaintiff be remediless. Upon the same principle, on decree of foreclosure, the mortgagee would be without remedy, if his title should prove defective.
The defendant’s plea of payment, is wholly destitute of support. A debt is paid, when the contract is performed, pursuant to the stipulation made. But, if on an agreement, something collateral is received in satisfaction, although the demand is extinguished, the debt, technically speaking, is not paid.
The jury were directed, if they found the issues for the plaintiff, to give him damages, to the amount of the consideration *391received for the five sixth parts of the four acres and three quarters of an acre included in the mortgage, of which the grantors were not seised in fee. It probably did not occur to the judge, at the time the charge was given, that John Sturdevant, deceased, was seised of an estate for life in the premises, and that thus far the plaintiff had no cause of complaint. In the estimate of damages, the value of the life estate ought to have been deducted.
For the reasons above expressed, I advise a new trial.
The other judges were of the same opinion.
New trial to be granted.