Statement of the Case.

the action should have been in assumpsit and was barred. 4 Mackey, 538. To review this judgment, a writ of error from this court was sued out, and, pending its decision, the estate of Wood was completely distributed. The judgment of the District Supreme Court was affirmed by this court May 5, 1890. 135 U. S. 309. Meanwhile and on March 10, 1890, a subpoena against Bryan was issued in the present suit and was served on him on that day. April 30, 1890, Bryan answered the bill, not admitting the right or authority of plaintiff as administrator to maintain the suit against him; he denied the right of plaintiff to compel him to pay any balance due upon the mortgage; he set up, among other things, his continuous residence beyond the District; the service of process on him during his appearance in the District on business; that the transaction between him and Wood was an exchange of equities of redemption, which the $2000 was paid to equalize, any claim in respect of which was, moreover, barred; the defence of the bar of the statute of limitations, existing and pleaded in favor of Wood; the dismissal of the bill as to the executrix of Wood; the judgment rendered in her favor by the court in general term; the distribution made of the estate of Wood; the non-liability of Wood and his estate and the consequent non-liability of Bryan. July 1, 1890, a replication was filed, without leave, to the answer filed by Wood on October 10, 1881. Wood had died August 31, 1882, and Mrs. Wood, his executrix, had deceased as early as the middle of March, 1887. July 31, 1890, counsel for complainant, without leave of court, filed in the cause the following: "And now comes the said complainant and withdraws his direction to the clerk to dismiss the bill, so far as it relates to Mary L. C. Wood, executrix, filed January 5, 1885, the same having been filed through mistake and misapprehension."

By Wood's will, Mrs. Wood was appointed executrix and Thomas N. Wood, his son, executor, and letters testamentary were granted to them October 27, 1882. The son, after qualifying as executor, performed no duties as such during the lifetime of his mother, who administered upon the estate. In March, 1887, after his mother's decease, the son filed as

Statement of the Case.

executor a new appraisement and inventory and wound up the estate.

In the action of assumpsit brought by Willard, as administrator of Frederick L. Christmas, against Wood, the clerk was directed by plaintiff's attorney, on the suggestion of the death of defendant, to issue summons to Mrs. Wood as executrix to appear and defend, so in this cause a subpoena was directed to bring in Mrs. Wood as executrix, and so in the action brought by Willard in Wood's name for the use of Charles H. Christmas, administrator, the death of Wood was suggested, and on application of plaintiff's attorney the suit was revived in the name of Mrs. Wood as executrix. The action of covenant brought by Willard, as administrator of Christmas, against Mrs. Wood, as executrix, was conducted and tried throughout on the theory of her exclusive representative character; and, similarly, the dismissal of this bill, January 5, 1885, was as to Mrs. Wood as executrix.

Willard's counsel had notice of the executorship of the son, whose appearance as executor was entered in the present suit, with that of his mother as executrix, October 25, 1883, but both sides went on with the proceedings as if Mrs. Wood were sole executrix.

This suit was on January 12, 1892, ordered to be heard by the Supreme Court of the District at the general term in the first instance, but, before such hearing, became transferred under the act of Congress of February 9, 1893, c. 74, 27 Stat. 434, to the Court of Appeals of the District of Columbia, where the bill was dismissed with costs in accordance with an opinion delivered by Mr. Chief Justice Alvey, made part of the record and reported in 1 D. C. App. 44.

The Court of Appeals held that the bill was effectually dismissed as to the estate of Wood by the order of January 5, 1885; that the right, if any, attempted to be enforced against the estate of Wood by reason of the assumption in favor of Dixon was fully barred by the statute of limitations or the lapse of time before the bringing of this suit; that plaintiff as the representative of the mortgagee could not be substituted to the position of Wood with the right to enforce the covenant

Argument for Appellant.

Bryan made with and for the benefit of Wood, under the cir cumstances; and that the covenant of Bryan in the deed from Wood, if it could be availed of at all, could not be deemed a lawful asset of the estate of the deccased in this District, which vested in the administrator here and entitled him to sue Bryan therefor.

Mr. William Henry Dennis and Mr. Enoch Totten for appellant. Mr. Stephen Condit was on their brief.

Apart from technical objections urged by the defendants, the Court of Appeals denied relief on the grounds: (a) That the right sought to be enforced against the estate of Wood was barred by tine, by analogy to the statute of limitations, before this suit was brought; (b) That this suit was dismissed as to the estate of Wood by the præcipe as to Mrs. Wood; (c) That the remedy against Bryan was lost when the remedy against Wood's estate was lost.

All these propositions are respectfully controverted by complainant.

Such a theory of subrogation might be carried even further, and the right to recover against Wood be denied, because Dixon was discharged in bankruptcy from his debt to the mortgagee. The answer to that, of course, is that a discharge in bankruptcy results merely by operation of law, is an act in invitum as regards the creditor, avails only the bankrupt and does not discharge any other person liable for the same debt. Bankrupt Law, Rev. Stat. § 5118. See Story on Notes, $428.

(a) The estate of William W. W. Wood is liable notwithstanding the lapse of time. His bargain with Dixon to buy the house and assume the mortgage was a New York contract and governed by the laws of New York.

"It is a principle too firmly established to admit of dispute at this day, that to the law of the State in which land is situated must we look for the rules which govern its descent, alienation and transfer, and for the effect and construction of conveyances." McGoon v. Scales, 9 Wall. 23; Orvis v. Powell,

Argument for Appellant.

98 U. S. 176; Brine v. Ins. Co., 96 U. S. 627; Pritchard v. Norton, 106 U. S. 124; Canada Southern Railway v. Gebhard, 109 U. S. 527; Dennick v. Railroad Co., 103 U. S. 11.

By the law of the State of New York, a purchaser of mortgaged real estate who accepts a deed thereto, by the terms of which he assumes, covenants and agrees to pay the mortgage as a part of the purchase money, is liable for the amount of the incumbrance, and his liability is precisely the same, whether he actually signs and seals the deed or not. He is bound by the covenants in the instrument in either case, and an action may be maintained on the contract by the mortgagee. Trotter v. Hughes, 12 N. Y. 74; Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Hand v. Kennedy, 83 N. Y. 149; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Vrooman v. Turner, 69 N. Y. 280; Bowen v. Beck, 94 N. Y. 86.

The precise question involved here was decided by the Court of Appeals of New York in Bowen v. Beck, 94 N. Y. 86. The purchaser who assumed the mortgage debt in that case did not sign the deed, but accepted it and its benefits; the deed purported, as here, to be a deed of "indenture," and the statute of limitations was pleaded; that statute as applicable to simple contracts barred the action, but as applicable to a specialty it did not. That case was in all respects undistinguishable from this, and the court held that the statute was not a defence. If this action were pending in New York, it would clearly be controlled by that case. See also Hoff"& Appeal, 24 Penn, St. 200.

This court, in Willard v. Wood, 135 U. S. 309, declined to decide this question, although it was argued at length at the

bar.

The Court of Appeals concedes that such is the law of New York, and that international jurisprudence requires it to be respected in this case, but undertakes to say that the liability of Wood was not what the law of New York declares it to be, that of a party to the deed, but only a "simple contract" on Wood's part. It is submitted that this fails to give due effect to the lex loci contractus. It changes the nature of the con

Argument for Appellant.

tract, and makes a different one. In United States Bank v. Donnally, 8 Pet. 361, cited by the Court of Appeals, the paper sued upon was, on its face, a promissory note, not under seal, and it was held that it could not be sued upon in Virginia as if it were a sealed instrument. The case at bar is not an action of covenant at law, but in equity upon the obligation imposed by the law of New York. If Wood was liable (and it is conceded he was), he was liable as the law of New York said he was, as if he had joined in executing the deed he accepted, and there was no mere "simple contract."

It is quite supposable that Wood did not sign the deed because the law of New York made that form superfluous.

There is nothing in the statute of limitation of the District of Columbia which excludes or conflicts with the New York doctrine. Section 6 of the Maryland act of 1715 expressly includes a recognizance, which, like the assumption of a mortgage in New York, does not need to be sealed or even signed by the obligor.

Section 2 of the same act, on which defendants rely, provides as follows: "All actions of trespass quare clausum fregit, all actions of trespass, detinue, surtrover or replevin for taking away goods or chattels, all actions of account, contract, debt, book or upon the case, other than such accounts as concern the trade or merchandise between merchant and merchant, their factors and servants which are not residents within this province, all actions of debt for lending, or contract without specialty, all actions of debt for arrearages of rent, all actions of assault, menaces, battery, wounding and imprisonment, or any of them, shall be sued or brought by any person or persons within this province, at any time after the end of this present session of assembly, shall be commenced or sued within the time and limitation hereafter expressed, and not after; that is to say, the said action of account, and the said actions upon the case, upon simple contract, book debt or account, and the said actions for debt, detinue and replevin for goods and chattels, and the said actions for trespass quare clausum fregit, within three years ensuing the cause of such action, and not after."

VOL. CLXIV-33