Lessee of Simpson v. Ammons , 1 Binn. 175 ( 1806 )

Tilghman C. J.

delivered the opinion of the court.

This case comes before the court, on a case stated for their opinion.

Baynton, Wharton, and Morgan, being seised in fee simple as jointenants of the land in question, a mortgage was executed by Baynton and Morgan, and by Baynton for Wharton, to Benjamin Marshall; but Baynton had no authority to execute the mortgage in the name of Wharton. The administrators of Marshall, who is dead, assigned this mortgage to the lessor of the plaintiff, who also obtained a conveyance of the whole land from Morgan, since the death of Baynton and Wharton. On this case two points arise: First, Whether the jointenancy was severed by the mortgage: Secondly, Whether the assignee of the administrators of a mortgagee can support an ejectment in his own name.

As to the first, the court are of opinion that the mortgage was a severance of the jointenancy. The interest of Baynton and Morgan passed by it, but the interest of Wharton was not affected.

As to the second point, the legal estate in the two thirds conveyed to Marshall, descended on his death to his heirs. But the mortgage being in effect only a security for a debt due to the estate of Marshall, his heirs were trustees for the benefit of the administrators, who were entitled .to the debt. It was determined in the case of Kennedy v. Fury, 1 Dall. 72. that cestui que trust may support an ejectment in his own name. This decision is founded on the peculiar situation of Pennsylvania, where there is no Court of Chancery, to prevent inconveniences which might arise from the obstinacy of trustees, who might refuse to assist in the recovery of lands. It appears to us that the case before us falls within the same principle. The equitable interest of the mortgage is completely vested in the lessor of the plaintiff, and no third person can be affected by his recovery in this ejectment. We are of opinion, therefore, that he may recover; but as the interest of Wharton is not vested in him, he can recover but two thirds of the land for which the action is brought.