McKnight's Executors v. Walsh. belong to the administrator de bonis non who shall collect them. The act (Nix. Dig. 645, § 26,) directs that commissions shall be allowed in reference to pains, trouble, and risk incurred in settling the estate. As to this amount, he has taken no pains, trouble, or risk in collecting or settling it; his only pains have been as a debtor to defer payment of his debt to the estate, which still remains, and which an administrator might have been appointed to collect after his death. The payments of interest were made by him as debtor, as it accrued on the sum he owed; he would have made these as such to McCall had he lived. Again, the commissions on the principal of the trust fund, had he collected it, could not have been allowed out of, or deducted from it, but from the residue of the estate. Every bequest of a specific legacy or a specific sum must be paid entire; the commissions, like the other expenses, must come out of the residue of the estate. The $25,000 belongs to the defendant, free from expenses or commissions. That he paid over the residue without deducting commissions, if he was entitled to them, was his own folly, unless he intended not to charge them to his niece. Walsh could not bind the infant. or this fund for their payment. Had the trustee invested this fund, and collected the interest on the investment, and paid it over to the person entitled to it, he would have been entitled to such commissions on that as the proper tribunal should allow, not such as was agreed upon by a person who has no interest in the amount. If commissions could be allowed, as against the infant, upon the income, the whole amount, at the highest rate allowed by law, would be less than $700, to be taken on the settlement of the account-that is, upon the final decree in this suit. The amount retained by him, with simple interest, would now exceed $2000. The charge for commissions must be wholly disallowed; and as this sum of $1000 was retained by him, it must be included in the balance on which compound interest is to be computed. Wilson v. King. WILSON US. KING and FORD. 1. A parol agreement by the grantee, at the time of taking a deed, that he would assume a mortgage upon the property as part of the consideration, will be enforced in equity. A covenant in the deed that the premises are free from encumbrances, or any other covenant, will not estop the assignee of such mortgage from recovering on such undertaking. 2. The proof in this case is sufficient to warrant a decree for deficiency in proceeds of sale against the grantee. But the allegation of the bill being that the undertaking was a stipulation contained in the deed, and that the grantee became bound by the acceptance of the deed, while the proof is that it was not contained in the deed, but was a parol promise at the making of the deed, the variance is fatal to such a decree. 3. An agreement between solicitors to amend the bill so as to conform to the facts, there being no amendment actually made, cannot avail on the hearing for final decree. Neither an agreement to amend, nor an order giving leave to amend, amounts to an amendment, even if filed. 4. To entitle a complainant to a decree in a foreclosure suit for any deficiency of the proceeds of sale in discharging the mortgage, the party sought to be charged must have been served with notice that such decree would be asked for against him. 5. The usual covenants in a deed are not part of the conveyance of real estate. They are mere personal covenants. A covenant against encumbrances, therefore, by a married woman, resident in the state of New York, in a conveyance of her husband's property, situated in this state, the law of New York not authorizing a married woman to enter into covenants as to her husband's property, does not affect, nor does any estoppel arising therefrom affect, a mortgage upon the property given by the husband prior to the conveyance, and which, after the conveyance, was assigned to the wife, and by her assigned to another. Her assignee would be entitled to a decree but for the defect in the pleading. Argued upon final hearing, on bill, answer, replication, and proofs. Mr. A. K. Brown, for complainant. Mr. Stone, for defendants. Wilson v. King. THE CHANCELLOR. The defendant, Ford, on the 15th of December, 1858, executed a mortgage to Harriet Woodward for $500. This is the mortgage sought to be foreclosed in this suit. It grants and conveys the property to the mortgagee, without any words. of inheritance. The bill, in stating the mortgage, states that it conveyed the premises to Mrs. Woodward, "her heirs and assigns for ever, in fee simple." Ford and his wife Laura, by deed dated April 4th, 1858, acknowledged and recorded April 4th, 1859, (on which day it probably should have been dated, as stated in the bill,) conveyed the premises in fee to the defendant, King. This deed contained the usual covenants. The covenants of seisin, for quiet enjoyment, against encumbrances, and for further assurance, are expressed to be by the "parties" of the first part; this includes Mrs. Ford; the covenant for warranty is by Mr. Ford only. Ford and his wife resided in New York, and the deed was executed and acknowledged in New York before a commissioner for this state, residing there. On the 2d of August, 1865, Mrs. Woodward assigned the mortgage to Mrs. Ford, who on the 2d of December, 1867, assigned it to the complainant. The bill states that in the deed to King it was stipulated that the lands were conveyed subject to the mortgage, and that the same was assumed to be paid by King as part of the consideration, and prays for a decree against King and Ford for any deficiency of the proceeds of sale in discharging the mortgage. But no notice that such decree would be asked for was served on either, as required by rule thirty-eight. I find among the papers handed to me one signed by the solicitors of the parties, but not dated or filed, by which they agreed that the bill should be amended by striking out the allegation that this stipulation was contained in the deed, and by adding an allegation that it was by parol agreement at the time of giving the deed, and that King fetained the amount of the mortgage out of the consideration money. But this amendment has not been made in the bill. The only answer is that of the defendant, King. Ford was never brought into court. King denies all knowledge of Wilson v. King. the mortgage or the assignment of it; avers that if any mortgage was given, it was without consideration, and fraudulent. He admits the deed to him, but denies that it contained a stipulation that he should assume the payment of the mortgage, and alleges that it contained full covenants of warranty, and purported to convey the premises free from all claims or encumbrances whatever. But it does not state that Mrs. Ford joined in the covenants, nor set them up by way of estoppel against the mortgage. The complainant's relief, in this case, must be upon the mortgage, or the undertaking of the defendant, King, to assume and pay it. This cannot be had upon the mortgage, because the mortgage produced in evidence is entirely different from that set forth in the bill. The bill states a mortgage to Mrs. Woodward, her heirs and assigns, in fee. That produced is to her, without any words of inheritance; this is for her life only. The variance is substantial and radical. A decree pro confesso, or any decree in general terms, for the sale of these mortgaged premises, would be a decree to sell the fee, and would deprive the defendant of the whole fee. No application was made at the hearing to amend the bill; in fact, from the evident negligence with which the bill was drawn, and the proceedings in the cause conducted, it is doubtful whether the solicitor of the complainant ever noticed the defect, or even read the mortgage. It was not alluded to in the argument on either side. It will be in time to determine whether the bill can yet be amended in this respect, when application shall be made for that purpose. It does not appear in the case whether the mortgagee is living; if dead, such application would, of course, be of no avail. The doctrine of variance prevails in equity, as at law, though enforced with less strictness. The undertaking of King to pay the mortgage would be enforced in equity, if proved. The covenant in the deed that the premises were free from encumbrances, or any other covenant, would not estop the complainant from recovering on such undertaking. It was so held by the Court of Errors in Bolles v. Beach, 2 Zab. 680. That was a suit by grantor Wilson v. King. against grantee, on a verbal promise at the conveyance to assume and pay a mortgage of $1000, on the premises conveyed. The deed was with full covenants, including that against encumbrances, and it was declared that neither the covenants nor the recital that the consideration was paid in full, or the release for it, estopped the grantor from proving and recovering on the verbal agreement. The court held that the estoppel only applied when the proof was offered for affecting the validity of the deed. And it is settled that in equity the mortgagee may recover against the grantee on such undertaking to the grantor, as an equitable undertaking to him, although in a foreclosure suit no recovery could be had against the mortgagor on his bond for the deficiency until the act of 1866. Nix. Dig. 119, § 104. The proof in this case is sufficient to warrant such decree. Mr. Wetmore, a counselor-at-law in New York, testifies that he was consulted in the negotiations about this conveyance to King, and that King agreed to take the title subject to this mortgage and to assume its payment. Mr. Ford also testifies to this. Mrs. Ford testifies that King, at the conveyance, was told of this mortgage, and knew it was upon the property. There is no testimony to contradict this. The answer of King does not contradict it. That states simply that there was no such stipulation in the deed to him. The settled principles of law and equity and the evidence in this cause, will warrant a decree against King to pay any deficiency in the proceeds of the sale to satisfy the amount due on this mortgage. But for this again the pleadings are insufficient. The bill states the undertaking as a stipulation contained in the deed, and that King became bound by the acceptance of the deed. The proof is, that it was not contained in the deed, but was a parol promise at the making of the deed. Neither at law nor in equity, would a declaration or bill upon a bond or promissory note be sustained by proof of a parol promise to pay the amount. The draftsman of the bill could not have read the deed. agreement for amendment can be of no avail here. There is no amendment actually made. If a decree was signed, the The |