The judgment of the court was pronounced by
King, J.The defendant is sued in this action as the administrator of the succession of Presley Slephenson, for the residue of a loan of money made by the plaintiffs to the deceased, the payment of which was secured by a special mortgage on a tract of land and several slaves. The prayer of the petitioners is, that the sum claimed be paid by privilege out of the proceeds of the hypothecated property, of which a probate sale has been made, and that the defendant render an account of his administration. A judgment was rendered in accordance with this prayer, from which the defendant has appealed.
It has been contended on the part of the defence, that the property adjudicated at the probate sale of Stephenson's succession, has not been identified with that subject to the plaintiffs’ mortgage; that there is error in the judgment allowing the plaintiffs a privilege on the proceeds of the property; that the defendant was not appointed administrator for some time after the first instalment became due; and that no proof has been adduced that the proceeds of the sals have gone into his hands.
*527Eight of the slaves, George, Squire, Sam, Hannah, Maria, Kate <rr Gathariñe, and her two children, adjudicated at the probate sale of Stephenson, correspond in-name, age, and sex, with those described in the mortgage, which, coupled with the fact that they were found in the succession of the mortgagor,sufficiently establishes their identity, in the absence of proof bringing their identity in question. We think also that the evidence fixes, with sufficient certainty,the identy of the tract of land sold with that described in the mortgage. These-slaves, with the tract of land, produced a sum more than sufficient to satisfy the plaintiff's’ demand.
We have been referred to no law which confers upon the plaintiffs the privilege claimed. The 28th section of the act of incorporation (Session- Acts of 1835, p. 105,) gives the plaintiffs the right, on all mortgages executed under that act, to seize the mortgaged property, in whatever hands it may be, in the same manner that it could be seized in the hands of the mortgagor, notwithstanding' any sale or change of possession by descent or otherwise, but confers no privilege. The plaintiffs, by claimiog the price in the hands of the administrator, have affirmed the probate sale, and ean no longer proceed against the property in the possession of the purchasers. But by this affirmance the bank hits forfeited none of its rights to be paid out of tho proceeds, which it would have had if the sale had been made at its instance ; and the fund in the hands of the administrator is subject to no other charges than those it would have been liable to, if the plaintiff had provoked the sale. The judge erred, however, in decreeing the payment to be made by privilege.
The defendant appeai-s not to have assumed the administration until more than a year after the sale took place, previous to which time the first instalment had become due. Many years intervened between the date of his appointment and the inception of this suit; all of the instalments have long since fallen due; and he must be presumed, in the performance of his duty, to have collected the entire proceeds of the sales. If any part of them were received by his predecessor, it was his duty to have held the latter to account; and if he has been unable to compel him to account or to coerce payment, this should have been made a matter of special defence, which it was incumbent on the defendant to prove. No such defence has been set up in the answer, and no such proof exhibited.
It is therefore ordered,-that so much of the judgment of the court below as decrees a privilege to the plaintiffs be rever-sed; and, in other respects, said judgment is affirmed; the appellee paying the costs of this appeal.