*39The opinion of the court Was -delivered by
Isham, J.It is admitted that the plaintiffs are entitled to recover in this case unless the defendants have shown a legal title to the premises in question, under what is termed the Arms mortgage. To that single question, therefore, our inquiry is confined. It appears from the -case, that on the 17th of May, 1831, Jonathan Arms conveyed to Luman and Norman Rublee and Otis Standish a lot of land, of which the premises mentioned in the declaration are parcel, and that he took from them a mortgage deed of the same premises to secure the payment of the notes therein described. The defendants, in order to prove their title to the premises, gave in evidence a deed from L. and N. Rublee to Moses Hale, dated September 22, 1835, conveying a portion of the premises included in the Arms mortgage, and which is now owned by Mr. Langdon. They also gave in evidence the original mortgage deed given by the Rublees and Standish to Jonathan Arms and the notes therein mentioned, together with a quit-claim deed from Jonathan Miller as administrator of Jonathan Arms to Mr. Langdon, conveying all the premises described in that mortgage deed, and which included the premises claimed by the plaintiffs. The consideration of that quit-claim deed was the payment by Mr. Langdon of the balance due on that Arms mortgage, which he paid for the purpose of protecting from that mortgage, that portion of the premises which had been conveyed to him by Mr. Hale. By that payment and quitclaim deed, Mr. Langdon obtained the same interest and title to the premises mentioned in that mortgage deed, which Mr. Arms had in his life time, or which his administrator had after his decease. That Mr. Arms in his life time, and that Mr. Miller, as bis administrator, had the legal title in those premises is clearly settled by the authorities. In the cases of Atkinson v. Burt, 1 Aik. 329, and Lyman v. Mower, 6 Vt. 345, it was held, that the mortgagee, after condition broken, had the legal title and the right of possession to the mortgaged premises, and could sustain ejectment against the motgagor and his grantees without even a notice to quit. The Comp. Stat. 344, sec. 29, provides that “ a debt secured by mortgage and the mortgaged premises, belonging to the estate of any deceased person as mortgagee, or assignee of the mortgagee, when such mortgage shall not have been foreclosed in the *40life time of the deceased, shall be considered ass personal estate irs the hands of the executor or administrator, and shall he administered and accounted for as such ; and the executor or administrator may cause the mortgage to be foreclosed, and may recover possession of the mortgaged premises in the same manner as the mortgagee or his assignee might have done in |iis life time.” Under the provisions of this statute, on the decease of. Jonathan Arms, the legal title and interest in these mortgaged premises passed to Mr. Miller as his administrator, the same as personal property belonging to that estate; and is to the same extent under his personal control and disposition. He was authorized, without a licence granted by the probate court for that purpose, to discharge, release and transfer the legal interest in the mortgaged premises under the power given to him by his letter of administration. This point was determined in the case of Pierce v. Brown, 24 Vt. 172. It is immaterial for that purpose, whether the transfer of the mortgaged premises was made by an assignment on the back of the mortgage deed, or on a separate instrument, or by a quit-claim deed. In either case, the assignee or grantee obtains the legal title to the premises, to the same extent that it was held by the mortgagee in his life time, or by his executor or administrator, after - his decease. The payment of that mortgage debt, therefore, and the quit-claim deed of Miller as the administrator of Arms, gave to Mr. Langdon a legal title to the premises described in the mortgage deed; and, if it is unaffected by other testimony in the case, will in equity and at law prevail against the plaintiff’s title.
The important inquiry in the case, therefore, arises whether there was any evidence in the case tending to defeat that legal title of Mr. Langdon. The court instructed the jury, that the question for them to decide on the evidence was, whether, when the money was paid on the Arms mortgage by Mr. Langdon, he intended to become the purchaser of that mortgage, or whether it was understood as a payment or extinguishment of it, and with no intent to keep the same on foot as^ a subsisting incumbrance on the the premises; that if a purchase was not intended, but a discharge and satisfaction of it was the object of that payment, that the defendants under that quit claim deed had no legal title to the premises, and that the plaintiffs were entitled to recover. We *41have no occasion in this case to inquire whether it was optional with Mr. Langdon to treat that payment as a satisfaction of the mortgage, or as a purchase of the premises, as he might find it for his interest afterwards to determine; nor are we called upon to decide whether the legal effect of that quit-claim deed can be affected and destroyed by evidence showing the intention of the parties in making that payment; as we are satisfied that there was no evidence in the case, tending to prove that a discharge or satisfaction of the mortgage was intended, and that that question was, therefore, improperly submitted to the jury. The fact does appear in the case that, on the first day of April, 1841, when the last payment on the Arms mortgage became due, Rublee was unable to pay it, and so informed Mr. Langdon, and that Mr. Langdon, for the purpose of protecting his part of that property from that mortgage, paid to Mr. Reed, in whose hands the mortgage deed and notes' had been deposited, the balance due upon it. It also appears in the case, that Mr. Langdon, at the time he paid the money, took from Mr. Reed a letter to Miller, the administrator of Mr. Arms, requesting him to quit-claim to Mr. Langdon, not simply the premises owned by him, but all the premises included in that mortgage deed. If the intention of Mr. Langdon, in the payment of that money had been simply to obtain a release of his property from that mortgage, he had only to pay the money and cancel the mortgage deed and notes. That would have protected his property, and he could equally have sought his remedy on the covenants of his deed for the money which he had paid. The fact that directions were given, at the time the money was paid, to execute the quit-claim deed, is a controlling circumstance, that it was the intention of Mr. Langdon to obtain, and of Mr. Reed and Miller .to give to him the legal title of the entire mortgaged premises. The circumstance that there was not at that time any transfer of the notes, or assignment of the mortgage, and that the quit-claim deed was not executed until some time afterwards, has no tendency to defeat the legal effect of that deed as a transfer of the mortgaged premises, nor to show that an extinguishment or satisfaction of the mortgage was intended; for if the notes were not then transferred, or the mortgage deed assigned, nor the quitclaim deed executed, Mr.- Langdon did take a writing from Mr. *42Reed for that purpose; and during that period he had a claim upon them for the execution of the deed, and a transfer to him of the mortgaged premises, which in equity he could have enforced. The fact also, that Mr. Langdon has delayed to prosecute that mortgage for this length of time, has no tendency to show that a satisfaction of the mortgage debt was intended by that payment. It does appear from the case, that after the payment of the money on the Arms mortgage, Mr. Langdon called upon the other owners and occupants of these premises to repay the money he had advanced, and at all times has asserted his rights to the possession of the premises. It is difficult to conceive a case more free from any circumstance showing the mere intention to dischai'ge a mortgage, or where the right of an assignee of a mortgage is more fully and unequivocally established. The question of intention to extinguish the mortgage by that payment should not have been submitted to the jury on those circumstances, as none of them afford any evidence of such payment. Upon the case as made, the court should have held, as a matter of law, that the payment of the money and the execution of the quit-claim deed was a transfer to Mr. Langdon of the legal title to all the premises in that mortgage deed. Upon those facts the question was one of law, and should not have been submitted to the jury.
The testimony introduced by the plaintiff in relation to the note and mortgage given by Rublee to Langdon on the 5th of February, 1842, for the money paid by him to Mr. Reed on the Arms mortgage was important in the case ; and the question was properly submitted to the jury, whether the notes were given in payment for the money lie had so advanced. If the notes were given and received for that purpose, it would, prima facie at least, operate as payment of that debt, and defeat the legal title óf Mr. Langdon to those premises under the Arms mortgage. Though the conveyance by Miller, as administrator of Arms, to Langdon conveyed the legal title of those premises, yet he had but the title of the mortgagee, and that title was subject to be defeated whenever he was repaid by Rublee, the mortgagor, or by any other person having an interest in the premises, the amount due on that mortgage debt. The doctrine is well settled in this state that a promissory note given on a debt which accrued at the time the note was given, or *43on a previous indebtedness, is presumptive evidence of the payment of that debt, so that no action can be sustained upon the original indebtedness Hutchinson v. Olcutt, 4 Vt. 549; Farr v. Stevens, 26 Vt. 303. The rule would be otherwise, if the note was received as collateral securhy, or under any fraudulent statements as to the solvency of the maker, or if it is rendered unavailable by some inherent vice, as illegality of consideration. In such cases, the presumptive evidence of payment is rebutted, and the party has his remedy on the original indebtedness, the same as if the note had not been given. The court in substance so instructed the jury. The difficulty in this case arises from the fact that it is impossible to determine upon which of these questions the verdict for the plaintiff was rendered by the jury. It may have been rendered exclusively upon the question improperly submitted to their consideration ; if so, it cannot be sustained. On the other hand, it may have been rendered on the testimony in connection with the execution of the Rublee notes and mortgage given to Mr. Langdon; in which case, the finding of the jury would be conclusive. The fact that it does not appear from the case upon which of these grounds the verdict was rendered renders it necessary that the case be remanded for another trial. Judgment reversed and case remanded.