not understand that it is a mere matter of form, as is suggested by Justice Sutherland, in the case of Wilson v. Troup, 2 Cow. 195 [14 Am. Dec. 458]. It is a question of power, and was designed to be confided and confined to the person who, at the time of foreclosure, owned the mortgage, otherwise the legal positions which we have established would have no force. (See Justice Woodworth's opinion in the same case.) An advertisement in the name of the mortgagee in this case can have no greater force or effect than if it had been made in the name of a third person, a stranger to all the parties in interest, which would be none at all. If the advertisement may be made in the name of the mortgagee, it can only be on the ground of his having some power; and yet how can the power be divided or separated from the interest in the land? If it can be, what is to prevent a mortgagee, after he has assigned all his interest, from selling, after the mortgage is forfeited or due, without any regard to the wishes of the assignee? Where is the restriction?

It is urged, that the notice of sale is not required by the statute to be signed by any one, but no conception can be formed of a legal notice which does not disclose on its face that it emanates from some person or court claiming to have the power to act in the manner indicated by the notice. It is this that gives to it its force-that makes it a notice. The statute does not prescribe the form of the notice. It declares that a notice shall be given in which certain matters shall be specified-it does not regulate its form in other respects.

The mere act of continuing the advertisement in the name of the mortgagee, by the assignee after he acquired the whole interest in the mortgage, gave it no force he was no party to the notice. But let us suppose that the advertisement could be made in the name of the mortgagee: how then does the case stand? What evidence have we that the assignee, the grantor of defendant, purchased the equity of redemption at the mortgage sale? Defendant produces in evidence affidavits of publication, and affixing notice of sale and of the circumstances of such sale, and insists that the assignee being the owner of the mortgage, no further act or deed was necessary to perfect the foreclosure and vest the equity of redemption in him. Admitting that the nineteenth section of the act includes assignees as well as mortgagees, does he bring himself within the provisions of the section? This section authorizes the mortgagee to "purchase at any mortgage sale made in virtue of a power of sale contained in a mortgage," and declares that "his title shall not,

on that account, be impeached or defeated at law or in equity: provided the sale was in every other respect conducted in good faith;" and it further declares, "that the affidavits of publication and affixing notice of sale and the circumstances of such sale, shall be evidence of the sale and of the foreclosure of the equity of redemption, without any conveyance or certificate from the officer, in the same manner and with like effect as if such conveyance had been made." This section was doubtless intended to obviate the sound and established rule of equitable policy which disqualifies a trustee from becoming a purchaser of the trust estate without leave from chancery: and the reason of the rule is, to bar the more effectually every avenue to fraud. It was also designed to obviate the further difficulty presented by the fact that he could not deed to himself, and thus pass the title to the equity of redemption. But the owner of the mortgage did not sell. The mortgagee advertised the sale, and the sale purports to have been made on the authority of his advertisement. If the assignee had advertised, sold, and purchased, then he might, perhaps, have purchased without a deed. In this case, and upon the assumption that the mortgagee might sell, a deed was necessary. None is shown, and none was ever executed.

This, then, is the position of the defendant before this court, in reference to the equity of redemption. The advertisement of sale was not made pursuant to the power given, and if it was, the grantor of the defendant obtained no deed, no title, and, consequently, we must regard the equity of redemption as being in the plaintiff.

From the case made, it appears that after the execution of the mortgage, and before the advertisement of sale, the defendant received from the plaintiff a lease of the mortgaged premises: that he entered into possession of the mortgaged premises under and by virtue of the lease, which was executed by both parties; and the plaintiff claims that the defendant is estopped from questioning his right to recover the possession of the land. The defendant bases his right to the possession of the land, first, as we have seen, upon the foreclosure and a conveyance from the purchaser at the mortgage sale. Secondly, if his title under the foreclosure is not valid, he insists that the deed from the assignee of the mortgagee, though insufficient to convey the equity of redemption, carries the interest in the mortgage, and he occupies the position of a mortgagee in possession before foreclosure. The case of Jackson v. Bowen, 7 Cow. 20, is an authority in point.

Postal, jun., by his deed to the defendant, conveyed all his right, title, and interest in and to the mortgaged premises he had no remaining interest-his lien on the land by virtue of the mortgage, passed to the defendant, and he thereby acquired the right of an assignee. The intention was to pass a greater interest. If that failed, it is no objection to the operation of the instrument as an assignment. Valeat quantum valere potest. The mortgagor being considered only tenant at will to the mortgagee, the latter may assign the mortgage without making an entry: 8 Mass. 559. And when the mortgage is assigned, either by indorsement or a separate instrument, the assignee is put in the place of the mortgagee, to every purpose. The assignee might have maintained ejectment on the mortgage deed and the assignment to him against the mortgagor or his lessee: Schwarz v. Sears, Walk. 170. The defendant might have attorned to and taken a lease from George Postal, jun.: Jones v. Clark, 20 Johns. 51; Pope v. Biggs, 17 Eng. C. L. 116; 4 Kent's Com. 174; Powell on Mort. 156.

But the law does not compel the tenant to resist the rights of the mortgagee-he may yield to them, and he has the right to show that the landlord's title has terminated. He could not dispute the right of his landlord to make the lease to him, but he is allowed, notwithstanding, to prove the nature of such title, and to show, though originally a valid one, it expired before the commencement of the action, and that the land then belonged to another: for such a defense is not inconsistent with the terms of the original possession: Jackson v. Davis, 5 Cow. 135 [15 Am. Dec. 451]; Ad. Eject. 276. He does not dispute the landlord's title-he confesses and avoids it by matter ex post facto: Hopcraft v. Keys, 9 Bing. 613; 2 Smith's Lead. Cas. 509, 510. He shows, that by consent of his landlord his title has passed to another, or rather, that as an incident to the mortgage, he, as assignee of the mortgagee, had the right to enter, and being in possession, though in the first place under a lease, he has the right to retain possession as purchaser of an interest it was competent for him to purchase, and the sale of which the landlord himself had authorized.

Certified accordingly.

POWERS OF SALE IN MORTGAGE, AND EXECUTION OF.-See Bergen v. Bennett, 2 Am. Dec. 281; Demarest v. Wynkoop, 8 Id. 468; Doolittle v. Lewis, 11 Id. 389; Wilson v. Troup, 14 Id. 458, and cases cited in the note.

MORTGAGES, NATURE OF, AND WHAT PASSES BY.-See Waring v. Smith,

47 Am. Dec. 299, and cases cited in the note; see also Frische v. Kramer, Id. 368

ASSIGNMENT OF MORTGAGE, RIGHT OF MORTGAGEE GENERALLY.-See Pratt v. Bank of Bennington, 33 Am. Dec. 201; Smith v. Kelley, 46 Id. 595; Lady Superior v. McNamara, 49 Id. 184; Mott v. Clark, Id. 566. Quitclain deed by mortgagee of premises covered by his mortgage may operate as an assignment: Thayer v. McGee, 20 Mich. 195; see also Hunt v. Hunt, 25 Am. Dec. 400. The principal case was cited as to the effect of an assignment of a mortgage, in Johnstone v. Scott, 11 Mich. 246.

MORTGAGEE MAY BRING EJECTMENT AFTER FORFEITURE: Fuller v. Wade worth, 38 Am. Dec. 692, and note.

ESTOPPEL OF TENANT TO DENY LANDLORD'S TITLE.-See Heath v. Will iams, 43 Am. Dec. 265, and cases cited in the note; Bailey v. Kilburn, Id. 423, and note; Sims v. Glazener, 48 Id. 120; Bank of Utica v. Mersereau, 49 Id. 189; Farrow v. Edmundson, 41 Id. 250.

CASES

IN THE

HIGH COURT OF ERRORS AND APPEALS

OF

MISSISSIPPI.

STEVENSON'S HEIRS v. MOREARY.

[12 SMEDES AND MARSHALL, 9.]

ADMINISTRATOR, IN SELLING DECEDENT'S REALTY, MUST COMPLY STRICTLY with every requirement of the law, and probate courts can not order a sale unless everything necessary to give them jurisdiction of the person and of the subject-matter appears upon their records.

LONG AND UNINTERRUPTED POSSESSION UNDER ADMINISTRATOR'S DEED is sufficient, when taken in connection with his deed and other evidences, and the fact that the probate judge acted irregularly and without any uniformity, to justify the presumption that the title in its inception was perfect, and that the administrator proceeded according to the requirements of the law, although all the steps are not shown to have been taken; in such a case, the burden of proving that he did not sell according to law is on those questioning the validity of the sale. ADMINISTRATOR'S REPORT CAN NOT BE IMPEACHED COLLATERALLY, after a great lapse of time, because it was not sufficiently explicit.

PAROL EVIDENCE IS ADMISSIBLE TO PROVE CONDITION OF RECORDS of an office, and the manner in which they have been kept, as a means of accounting for that which is missing.

ABSENCE OF EVIDENCE THAT CITATIONS WERE POSTED IN PUBLIC PLACES ON ADMINISTRATOR'S SALE of realty, is cured by an uninterrupted possession of the purchaser for thirty-four years.

IN ADMINISTRATOR'S SALE, ABSENCE OF RECORD PROOF that he gave the required bond, or the requisite notice of the time and place of sale, or that he made a report of the sale to the court, is supplied by the presumption arising from the undisturbed possession of the purchaser for thirty-four years, where the recitals in the deeds show a full compliance, and there is evidence that the records were loosely and irregularly kept. STRICT PROOF MAY BE DISPENSED WITH AFTER GREAT LAPSE OF TIME, and its place may be supplied by presumption.

BEFUSAL TO GIVE ABSTRACT INSTRUCTIONS is not error.