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The opinion of the court was delivered, by

Thompson, J.

The question submitted for adjudication in the court below was distinctly stated to be, whether the plaintiffs can recover in the action of covenant, on the covenants of Charles Z. Nace with Samuel Hager, of the 12th January 1859, the same not having been recoverable from William Spink since the date of said assignment. It is therefore an action on the covenant and undertaking of the decedent in his lifetime, and not upon that of the administrator personally, and this is important to be borne in mind in this case. The covenant of the intestate Nace, now sued upon, Aras a guarantee to Hager, his assignee of the mortgage, against Spink, of a recovery of the mortgage-money. No doubt the property pledged Avas an insufficient security for the money, and it is admitted that the mortgagee was at the time insolvent, so that nothing could be recovered from the land, hence the guarantee required and given. After this, Hager transferred the mortgage to Dubois, and guaranteed a recovery of the money from Spink or Nace, his assignee. Dubois recovered judgment against Spink on the mortgage in 1860, but not the money, and on the 1st of July 1863 he transferred the mortgage and bond to Fluck and Delp, the administrators of Charles Z. Nace, deceased, without any guaranty to pay in case of failure to recover from Spink, and the judgment obtained was marked to the same use. Thus Ave trace into the hands of Nace’s administrators his covenant of guaranty, on which he Avas liable by reason of the admitted insolvency of Spink, and the knOAA’n insufficiency of the estate pledged, for it was afterAvards sold at sheriff’s sale for $100. That it was knoAvn to be insufficient may be inferred from the guarantees as well as the sale.

As the assignment of Dubois was to the administrators of Nace, and not to them personally, Ave must infer, in the absence of proof to the contrary, that the consideration was paid by the estate. The presumption accords best with the nature of the duty resting on the administrators.

The result of all this is that the obligation of the decedent being vested in his personal representatives for the benefit of the estate, it ceased to be an obligation against the estate in their hands. It Avas extinguished; and AYhile it remained so was satisfied *464in law. The mortgage to which it was attached, by the transaction, became the property of the estate, and it cannot be pretended, while it so belonged, that the guaranty was in force. That would be like one guaranteeing an obligation belonging to himself. It was a species of merger, but more properly an extinguishment. Being extinguished, was it revived by the transfer of the administrators? That could not be. They had no authority to create or incur such an obligation against the estate. If they undertook to do so, the obligation would be' their own and not that of the decedent: 8 S. & R. 403; 10 Mod. 316; 3 Bac. M. 94, tit. Executors and Administrators (4 vol., Bouvier’s ed., p. 120); 1 Dall. 347, in note. But it is the obligation of the decedent that is sued on, and thus on plain principles the case fails. I do not mean to say that in equity a lien or judgment, might not be kept intact against, an estate after a purchase of it by executors or administrators, where it would manifestly subserve the interest of the estate. Possibly it might be so: but it never could be so to its prejudice.

Mr. Schonley dealt with the administrators as such, and was bound to know the legal scope of their powers. They were but the agents of the law for a special purpose, and he could not have been misled by their act. The assignment of the mortgage was all right, and if the administrators had entered into a guarantee for its collection, it would have been their own personal contract, upon which they might have been made responsible as already said. Indeed their assignment contains nothing, in my opinion, like a guarantee by themselves or for the estate. They assign the mortgage, “ together with all rights, remedies, incidents and appurtenances, whatsoever thereunto belonging or in anywise appertaining, and all our estate, right, title, interest, property, claim and demand whatsoever of, in and to, the same, to hold,” &c. There is nothing in these terms to revive an extinct liability or create a new one. No doubt, had they stood in the relation of strangers to the estate, such a transfer would have passed the collateral covenant of guaranty, for then it would have been in full force and vigour. Not so as the case stands. It was extinct, and what the administrators said in the instrument of transfer did not revive it. We think the court below erred in entering judgment for the plaintiff below, and that it must be reversed and judgment entered the other way.

And -now, to wit, February 7th 1866, the judgment of the Court of Common Pleas entered in this case is reversed, and judgment in favour of the defendant on the case stated with costs.

Per Curiam.Strong, J., dissented.Woodward, C. J., was absent.

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