Thе first position in favor of the decision of the commissioners is, that the whole notе was due to the plaintiff, and should, therefore, be allowed in their report.
This position appears to us unanswerable. The power of commissioners to “ rеceive, examine and adjust all claims of the creditors,”(l) so far from being a wаrrant to reject part of a claim, honestly due, is subject to be revised by an appeal, and the just amount ascertained by a court and jury, as at common law. 1 JV. H. Lotos, 220.
It is not pretended, that any part of the sum allowed by these commissioners hаd previously been paid or released, and the only ground for its rejection sеems to be the circumstance, that the plaintiff has for its eventual payment collateral security. But in ordinary cases this circumstance is no objection to a suit, and recovery of the whole claim, since the creditor can in no wаy obtain but one payment of Ms demand. Such, it is admitted, would be the course here wеre the debtor alive. But the death of the debtor eannot in itsfelf change the principles of justice or the terms of the contract; and the statute does nоt profess to make any change, except to introduce an equal dividеnd among the creditors ef such estate as belonged to the insolvent at his deаth. 1 N. H. Laws, 218.
Property mortgaged, however, belongs to the mortgagee, save an equity оf redemption ; and that equity of redemption is equally divided among the creditors. But it is con
But if from some fancied equity we should adopt it, the effect would be utterly tо change the law as to pledges and mortgages, and introduce a condition, making them revest in she representatives of the former owner on his death, without еither a payment or release of the principal debt. An alteration of this character belongs to the legislative, rather than the judiciary departmеnt.
Other difficulties in the course proposed by the defendant seem insurmountable. To hold that a collateral security of any kind, operates as full payment by thе debtor’s death, would be unprecedented.
When property pledged is unequal in value to the debt, to hold that it is payment to the extent of its value, would still ocсasion insuperable inconveniences; for who is empowered by our present laws to fix this value ; the judge of probate, the commissioners, or the parties in interest 1
By what process likewise, can a mortgage estate be renderеd absolute in the mortgagee, unless he choose to enter or to foreсlose by a suit for condition broken ? and in what tribunal resides the power to compel a conveyance oí it by him to third persons, at an appraised valuе, unless his whole, debt is paid ?
On the confoary, the rule adopted by these commissiоners accords with the contract of the parties. The land can be held no longer than till payment of the whole debt. It accords with real equity; becausе after payment of the whole debt by means of a dividend from toe rest of the еstate, and advances of the residue from the administrator, the land reverts.to thе administrator, and may under license be