The opinion of the Court was delivered by
TVii/LARD, A. J.James and Richd. Cathcart, the administrators . of Robert Cathcart, deceased, filed'a bill and obtained a decree for the sale of the real estate of their intestate. The real estate was sold under this decree, and James Cathcart, one of the administrators, became a purchaser of a tract of land, giving his bond, with Richard Cathcart and Daniel Nelson as sureties, and a mortgage upon the land purchased. This bond and mortgage was taken by the Commissioner in Equity, and held by him until transferred by him to James Cathcart, under an order made by Chancellor Dar-gan. This order, after directing the Commissioner to apply the funds in hand, appertaining to the estate of Robt. Cathcart, to the payment of certain specified debts, directed the balance to be paid to the administrators of Robert Cathcart, “ upon their giving bond, with a penalty of double the amount so paid over to them, with sufficient sureties thereto, to be approved by the Commissioner, conditioned for the faithful disbursement of said funds in due course of-administration.”
The transfer was made by delivery of the bond and mortgage to the administrators, without the execution of any formal assignment.
On the 8th of July, 1852, James Cathcart, the acting administrator, assigned this bond and mortgage to Robinson and Caldwell, in satisfaction of a demand held by them against the estate of his intestate. Subsequently, James Cathcart mortgaged the same land to the Exchange Bank. Upon a foreclosure of the last mentioned mortgage, Richard Cathcart became the purchaser.
The bill, in this case, was filed in the name of the Clerk of the Court of Common Pleas, as the successor of the Commissioner in Equity, but for the benefit of Robinson and Caldwell, who are the equitable, if not the legal, assignees of the bond and mortgage, assuming such instruments to bo legally valid. The principal question in the case depends upon the fact that, after the bond and mortgage passed into the hands of James Cathcart, as administrator, he transferred them to a creditor of his intestate.
The questions are, were the bond and mortgage valid.securities in the hands of the obligor holding them as administrator?' And had he authority to transfer them as assets of the intestate estate in satisfaction of the debts of that estate. Taking the view most favorable for the appellant, namely, that under the terms of the order, and the transfer of the securities thereunder, he became the owner of the *402bond and mortgage, still the bond and mortgage were not extinguished in the hands of the administrator by the mere act and operation of law. The- rules of extinguishment and merger are inapplicable, because the possession of the securities, and the obligation to pay, were in different rights, though vested in the sajne person. •Creditors and distributees had the right to treat the bond and mortgage as paid from the maturity of the debt, but no rule of law or principle of equity compels them to do so unless they deem it for their interest.— Griffin vs. Bonham, 9 Rich. Eq., 77.
If thejr chose, they could waive this equitable remedy, and, in a proper case, pursue the bond and mortgage as available assets in the hands of the administrator. — Kennedy vs. Ewriger, 18 Pick., 232. The administrator had authority to transfer these assets in discharge of the debts of the estate, and the circumstance that they were his own bond and mortgage makes no difference in this respect. — Ipsich Man. Co. vs. Story, 5 Met., 310.
Had the administrator done any act expressive of an intention to treat the securities as extinguished, and, iu its nature, equivalent to payment, the debt would have become extinguished, and the mortgage discharged. In Ipsich Man. Co. vs. Story, accounting before the Probate Court, for the amount of the debt as so much cash in hand, when followed by a decree of distribution, and satisfaction of such decree, was held to be equivalent to actual payment. In that case the security would be destroyed.
It is contended by the appellant that the entries in the administrator’s account of a credit, under date of June 29th, to the estate, of the amount of the bond, with interest computed to July 1, 1852, evidences such an act and intent on the part of the administrator as amounts to payment in fact. But it appears by the decree that this return was filed subsequently to the transfer of the bond and mortgage, to-wit, on the 12th of July, 1852, and the entries must be referred to the latter date. Regarding the act of the administrator in this light, it is a conclusive objection to its validity that it took place subsequent to the transfer of the bond. But these entries do not sustain the construction sought to be put upon them. Under date of July 1st, 1852, the time up to which interest was credited on the amount of the bonds, the estate is debited with air amount paid to Robinson & Caldwell, including the amount .of the bond. It is, therefore, evident that the entry in question, including the credit under date of June 29, and the debit of July 1st, was intended to express the transaction which was complete by the transfer of the *403bond and mortgage into tlie hands of-the administrator, and the subsequent transfer of the same by him to Robinson & Caldwell. It is evident, therefore, that the administrator did no act equivalent to the payment of the bond and mortgage, and that they are valid in the hands/of Robinson <& Caldwell. The appellant has cited the language used in Griffin vs. Bonham, 9 Rich. Eq., 77, as sustaining tlie proposition that the transfer of the bond to the administrator worked an extinguishment of the debt and securities, without regard to the act or intent of the administrator. The question in Griffin vs. Bonham was one of commissions on a debt due from the executor to the testator’s estate, as between the administrator of a deceased executor and the surviving executor. The Court had evidently in mind the ordinary case of a debtor becoming the executor of his creditor when all parties in interest are disposed to treat the debt as an asset realized. Had the question been presented to the Court whether it should be in the power of the execu- ' tor to compel the creditors and distributees to take the personal security, and that of hiá official bondsmen, in lieu of a well secured mortgage, there is no reason to believe, from anything contained in that case, that the Court would have assented to so unreasonable and inequitable a demand.
Reference has also been made to the very general expression used in Schnell vs. Schroeder, Bail. Eq., 334, to the eifect “that the authorities concur that a debt due by an administrator to his intestate estate is assets in his hands.” This expression is unquestionably correct in the sense in which it is employed, namely, that the creditors and distributees may charge such debt as a cash asset. But to say that a mortgage made by a person subsequently becoming the administrator of the mortgagee is ipso facto destroyed thereby, ceasing to be an available asset of the intestate estate, is a very different proposition from that quoted from Schnell vs. Schroeder.
The foregoing disposes of all the objections made to the decree by the grounds of appeal except one. It is contended that the authority of the administrator to dispose of the bond and mortgage is affected by the terms of Ch. Dargan’s order. The order in question simply placed the securities in the hands of the administrators, under special securities, in order that they might employ them in the course of administration. It did not affect the powers of the administrators as to such assets, either by way of enlarging or restricting them.
The appeal must be dismissed and the decree affirmed.
Moses, C. J., and Wright, A. J., concurred.