The opinion of the court was delivered by
Royce, J.This case was heard in the County Court upon the report of a commissioner appointed to report upon the subject-matter of the claims of the plaintiff as administrator against the defendant estate. The plaintiff’s first account as administrator was settled June 14, 1867, and it is claimed that the presentation of this account to the Probate Court for allowance after his first account had been settled, was irregular, and that the objection may be taken in this court. It does not appear that any such objection was made in the Probate Court or County Court, or *142that an appeal was taken or claimed from the order of the Probate Court by the defendant. The defendant, by allowing the case to proceed to final judgment in the County Court without interposing the objection has waived the right to make it in this court. The plaintiff’s claim consisted of two items. There are some other items of charge upon his specification, but they are so connected with and dependent upon the two principal items that their allowance or disallowance must depend upon the allowance or disallowance of those items. In relation to the first item of $400, charged as having been paid to James Johnson, in 1864, the commissioner finds that James Johnson at that time held a mortgage on certain real estate, to secure his future support, and that the plaintiff purchased his interest in said mortgage and took a warrantee deed from him of the premises described in it, and gave him therefor his eight promissory notes for $50 each, payable yearly thereafter. That said notes were subsequently transferred by James Johnson to Henry Johnson, under an arrangement by which Henry Johnson obliged himself to support James Johnson, and that Henry did furnish such support to an amount exceeding the sum of $400. The claim for support so furnished was never presented as a claim against the estate of Dawson Johnson, and the plaintiff has never become liable to pay the same. It does not appear that the notes which the plaintiff gave to James Johnson were negotiable, nor that the plaintiff has ever paid them. James Johnson could not charge the estate of Dawson upon his mortgage, unless the condition providing for his support had been broken ; and, to enable the plaintiff, as administrator of Dawson Johnson’s estate, to charge said estate on account of neglect or refusal to support James Johnson, it should appear that such claim had been allowed against the estate, or that the plaintiff, in his character of administrator, had paid, or become legally liable to pay, for the same; and neither one of such facts has been found by the commissioner. As to the second item, the commissioner has found that after the plaintiff’s appointment as administrator of Dawson Johnson’s estate and guardian had been appointed of his children, and after said guardian had filed a bond in the Probate Court conditioned to pay such debts as might be allow*143ed against the estate, the plaintiff voluntarily paid a note which was held by H. E. Seymour, executed by James and Dawson Johnson and secured by mortgage of the premises described in the deed from' James Johnson to the plaintiff, which mortgage was executed by James and Dawson Johnson, and took an assignment of said mortgage to himself. It is to be observed, first, that the plaintiff did not, in said transaction, act in the capacity of administrator ; second, that the claim had not been allowed against Dawsdn Johnson’s estate ; and third, that it does not appear, as between James Johnson and Dawson’s estate, whose duty it was to pay it. It is well settled that a party holding a note secured by mortgage must, if he claims any dividend or portion of the assets of the estate of the mortgagor, present the same for allowance by the commissioners, and if he neglect to do so he must rely wholly upon the property mortgaged, to compel payment of his debt. Grafton Bank v. Doe, 19 Vt. 463. Upon the facts found, this item of. claim comes clearly within that rule. The plaintiff, by his purchase and assignment from Seymour, succeeded to Seymour’s rights, and is only entitled to the same remedies that Seymour would have been entitled to, if the sale and assignment had not been made.
Judgment affirmed, and certified to the Probate Court.