Administrator of Kinard v. Young

Curia, per Johnston, Ch.

This court feels much difficulty in giving construction to the Act of 1789, recited in the decree; and is not prepared to say, that, if the question were entirely open to them, the construction adopted by the Chancellor is not a fair deduction from its phraseology. But, it is deemed expedient to defer to the case of Tunno vs. Happoldt, cited in the decree, as an exposition of the court of law; leaving to that court, or to a future occasion, the consideration of the suggestions made in this case. The court is satisfied with the decree upon all other points.

It is therefore ordered, that the decree be modified, by allowing the mortgage to prevail only so far as it had a lien on property intermeddled with by the executor de son tort; and that in all other respects the decree be affirmed.

Johnson and Dunkin, CC. concurred.