ANDREWS AND HALL, adm'rs, v. BURNS, adm'r.

ANDREWS AND HALL, adm’rs, v. BURNS, adm’r. 1. A mortgage, though not recorded, is good as between the parties, and therefore binding binding on the administrator of the mortgagor, unless some creditor of the mortgagor, without notice of the mortgage, has obtained a judgment, and acquired a lien on the mortgaged property. Error to the Orphans’ Court of Dallas. Richard Hall was appointed administrator of the estate of William A. Hall, deceased, in October, 1844; and some time after obtained an order for the sale of the personal property, which sale was returned as made, on the 18th January, 1845. In May, 1846, he reported the estate insolvent, and the court so declared it. In July, 1846, Richard Hall died, and the plaintiffs in error became his administrators, and the defendant in error was appointed administrator de bonis non of the estate of W. A. Hall. The plaintiffs in error having filed their account for a final settlement of their intestate, as administrator of W. A. Hall, the following items were contested: No. 30. The facts of which were, that W. A. Hall, being indebted to one Andrews, executed to him a mortgage on several slaves to secure its payment. The slaves included in the mortgage, together with others, were sold by R. Hall, the administrator, with the consent of the mortgagee, and produced more than sufficient to pay the mortgage debt, amounting to $933 82, which the administrator paid over to the mortgagee. The mortgage had never been recorded, and the creditors objected to the allowance of this item as a payment of a preferred claim, upon the ground that as the mortgage had not been recorded, it was no lien upon the property, and the court sustained the objection and held that the mortgage created no lien upon the property. The administrators also claimed an allowance of an item of $57 95, under the following state of facts: R. Hall, as administrator of W. A. Hall, sent the cotton of the estate to a commission house in Mobile, which house made sale of the cotton, and transmitted him an account of sales, which is thus stated; Richard Hall, adm’r, &fc. in account, 8fc. 1844. Oct. 1. To merchandise, bill of bagging and rope 1 rendered.$36 19 23. To cash paid J. F. Connely.$396 88 “ comm’s advancing, 2i per cent. 9 92 1845. 406 80 Jan. 27. Interest to date. 9 43 Jan. 21. By net proceeds 21 bales of cot- ton. $393 94 27. Interest to date. 53 - 394 47 Cash received from R. Hall. 57 95 $452 42 R. Hall, the administrator, had charged himself in the account current with the whole amount of the sales of the cotton, and now claimed credit for the $57 95, which he al-ledges to be the excess over the amount of the sales, and which he alledged he had not in fact received. This item of $57 95 is stated in the record to be, the amount of an account against the estate of W. A. Hall, retained by the commission merchant, and sent to the administrator the amount of the sales, less the said sum of $57 95 ; there was no evidence to show what the charge was for. The court refused to allow either of these as credits, and the plaintiffs filed an exceptive allegation, and now assign these matters as error. Evans, for plaintiffs in error. Edwards, contra. [MAJORITY — ORMOND, J.] ORMOND, J. The court erred in refusing to credit the administrator with the amount paid Andrews on the mortgage. Although the mortgage was not recorded, it was nevertheless binding on*the mortgagor and his administrator, and the latter could not prevent a sale of the slaves for the satisfaction of the debt secured by it. The arrangement which he made, to relieve the slaves from the lien, was beneficial to the estate, they being worth more than the mortgage debt, and was in effect the same, as if the mortgagee had caused the sale to be made, and. paid him over the surplus. The omission to register the mortgage, did not make it void as to the creditors at large of the mortgagor, but only as against such, who having no notice of the mortgage, have obtained a judgment against the mortgagor, and obtained a lien on the mortgaged estate, before the mortgagee by a sale, had obtained the benefit of his mortgage. [Ohio Life In. & Tr. Co. v. Ledyard, 8 Ala. 866.] Such appears to be the case here. None of these creditors of the mortgagor, appear to have acquired a lien on the mortgaged estate, previous to the mortgagee having obtained satisfaction of his mortgage ; and as the administrator had not the power to prevent the sale of the slaves included in the mortgage, he is entitled to a credit for the amount due upon the mortgage paid by him, to the mortgagee; the effect of which, as already shown, was precisely the same as if he had suffered the slaves to be sold by the mortgagee. The remaining question, growing out of the sale of the crop of cotton, appears to have been misapprehended by both parties, judging from the exception taken, and the ruling of the court. By referring to the account rendered by the commission merchants in Mobile, it appears that the administrator had obtained bagging and rope, and an advance of money, in anticipation of the crop of the estate, which, with interest and commissions, amounted to $452 42. That the net proceeds of the crop, with interest to the time of stating the account, amounted only to $394 47, leaving a deficit of $57 95, which the administrator paid in cash. This last item, the administrator claimed to be allowed a credit for, having charged himself in his account, as stated with the court, with the whole amount of the sales of the cotton. This is clearly a mistake. He should have charged himself with $357 75, that being the net proceeds of the crop, after deducting the account for bagging and rope used about the crop, 'with interest from 21st January, 1845, and if not so entered, it must be corrected. Let the judgment be reversed and the cause remanded.