¶1The printed case contains much that has but little, if any, bearing upon the questions at issue between the parties. The title of the plaintiffs is very clearly proved, and must prevail, unless it is avoided by some of the several defences set up in the answer and proved upon the trial.
¶2(1.) The defendant claimed to be in possession as the assignee of a mortgage given by the original owner of the premises, William Frink, to Abigail Middlebrook, February 16,1838, and which is prior to the lien of the Wheaton judgment under which the plaintiffs claim title. If it is conceded that Mrs. Middlebrook afterwards assigned this mortgage to the mortgagor, William Frink, for a valuable consideration, it is not perceived what right the mortgagor took which could be transferred to the defendant in this action. The legal effect of an assignment of the debt to the debtor himself, for a valuable consideration, would be to extinguish the obligation. If there is any equitable ground upon which the lien of a mortgage in such a case can be preserved for the benefit of the assignee of the mortgagor, it does not appear in this case. The reissuing of the mortgage by the mortgagor to the defendant in this action for the purpose of overturning a lien subsequent to the date of the mortgage, is such a palpable fraud upon creditors and subsequent purchasers as to destroy all pretense of equity.
¶3If I understand the agreement under which the mortgage was given, it was to insure the support of Mrs. Middlebrook during her life. This, I think, was a verbal arrangement, while the mortgage in terms provided for the payment of $1437. The pretended assignment of this mortgage hy Mrs. Middlebrook back to the mortgagor was upon the same verbal arrangement. If there is any truth in this statement, the position of the parties was not changed by the transfer of the mortgage from Mrs. Middlebrook to the mortgagor. It was without any valuable consideration, and left the property still the property of Mrs. Middlebrook, and she was competent to satisfy it, even after its formal transfer to Frink; although *124the evidence does not show that it was after. The defendants’ answer states that it was transferred to him in November, 1840, and according to the report of the referee, she executed a satisfaction piece to the plaintiff in the previous October.
¶4(2.) As the defendant could not under any aspect of the case protect his possession under the Middlebrook mortgage, the objections to the declarations of Frink before the pretended assignment of it to the defendant, although well taken, are of no importance ; and may, I think, be disregarded on this appeal.
¶5So far as the declarations of Frink, while in possession, tended to show the character of his possession, and whether adverse or not, they were clearly competent. And I am of opinion that the evidence fully justifies the conclusion that he did not claim as owner, but only as tenant of the plaintiffs.
¶6(3.) It is cláimed by the appellant that there were several errors committed by the referee in the admission of irrelevant evidence, especially'in the admission of a letter from Judge Petit to A. C. Moore, one of the parties, and the letter of Moore in answer to it.
¶7But the defendant, among other things, claimed to hold the premises under a verbal agreement that they were to he his upon condition that he supported Mrs. Middlebrook during her life time. It was competent for the plaintiff to disprove this agreement, and as there was evidence tending to show that the letter of Judge Petit was written with the knowledge of Frink, and at his instigation, it was clearly competent as part of the res gestae. It contained a proposition to Moore to purchase the premises for the purpose of furnishing a home for Mrs. Middlebrook ; and the answer of Moore contained an acceptance of the proposition. This arrangement was quite inconsistent with the claim which -the defendant made upon the trial in respect to that transaction, and I think the referee decided correctly in admitting the evidence.
¶8This disposes of all the questions of any importance hearing upon the merits of the case.
¶9. (4.) The appellant, however, insists that the reference fell through, in consequence of the death of one of the plaintiffs, and that it could not be revived by a revival of the action. One of the grounds stated is, that the reference was by consent of the parties, and non constat, that the new parties would consent to a reference.
¶10I am of opinion, however, that the revival takes up the case where the death of the party leaves it. Formerly, it was usual in cases in equity, for the order of revivor to provide for giving the new parties the benefit and advantage of the proceedings already had in the action. But I am not aware that any authority from the court is necessary to give effect to the prior proceedings in the cause! The legal effect is, I think, to authorize the continuance of the proceedings from the point at which they were' interrupted by the death of the party. Under the Code, (§ 121,) the death of a party does not abate the action, but the court on motion may allow it to be continued by the • successor in interest. It would be a great hardship to the parties to construe this action in such a way as to require the plaintiffs to begin de novo. Unless we require this much, we must construe it in such a way as to allow the plaintiffs the benefit of the proceedings already had in the action, including the order of a referee when one has been duly obtained, whether by consent ef the parties, or upon motion in causes which are referable without such consent.
¶11Nothing appears in the case, or exceptions, which, in my opinion, calls for a reversal of the judgment.
¶12Bacon and Foster, JJ. concurred.
¶13Mullin, J. dissented, being of opinion that the letters were inadmissible.
¶14J udgment affirmed.
¶15Morgan, Bacon, Foster and Mullin, Justices.]