This is. an action by an executor to recover for the use and occupation of premises belonging to the estate of the testator, which the defendant enjoyed after the testator’s death. The defendant offered to set off against this claim a note which he held against the deceased ; and the superior court having disallowed the set-off, the defendant brings the case before this court on a motion in error, founded upon the facts found by the superior court. We are of opinion that there is no error in the judgment complained of.
Eirst, because the debts were not mutual. The executor, under the statute, has the same control of the real estate, dur*67ing the settlement of the estate, that he has of the personal property, and the same title to it, and possession «of it, and although he holds in trust for the benefit of the estate the title is still in him ; whereas the note against the deceased is not in any sense the executor’s debt, or a debt against him, but is solely due from the estate, and if put in suit and a judgment recovered upon it execution would go against the assets of the estate only.
In the second place, the statute of limitations had run against the note before the death of the testator. It was on demand, payable to Russel Waters or order, and was dated June 21st, 1854, more than six years before the testator’s death, and there is nothing to show that any thing had taken plaee to take the case out of the operation of the statute.
We therefore advise the superior court that there is no error in the judgment complained of.
In this opinion the other judges concurred.