#### Dedman *vs*Bridges.

Error to the Anderson Circuit.

*Estoppel, Morgages, Evidence, Fraud.*

Replevin. *Case*108.

*July*3.

Cass stated.

A’creditor who levied upon the equity of redemption mortgaged, not precluded from af-. terwards levying his execution upon the same property and selling, disregarding the mortgage.

Judge Simpson

delivered the opinion of the Court.

Bridges having a mortgage on a buggy the property of Landrum, ail execution against the latter in favor of Mrs. Mitchell, was levied upon it and the mortgagor’s equity of redemption sold, and purchased by Dedman.

Dedman having acquired possession of the buggy under his purchase, an action of replevin was brought against him by Bridges, as mortgagee, and a verdict and judgment obtained against him, by which he was deprived of the possession of the property.

Subsequently, another execution Was issued on the same judgment in the name of Mrs. Mitchell, but a small part of it having been paid by the first sale, which last execution was levied upon the same property, and a sale made disregarding the mortgage, at which sale Dedman again became the purchaser, and got posses-ion of the property.

This action of replevin was then instituted by Bridges against Dedman for the buggy, and the only question presented is whether Dedman under this second purchase, has a right to prove that the mortgage to Bridges was fraudulent, and is, therefore, invalid, and that he has an absolute title to the property.

If Dedman had remained in possession of the property under his first purchase, as he would have held it subject to the interest of the mortgagee, he might have been precluded by his attitude, according to the decision of the case *of McWhorter*vs *Huling*(3 *Dana,*348,) from purchasing for his own benefit, a right to the property, inconsistent with the title of the mortgagee, although such a purchase would have invested him with a lien to the extent of the money expended for the purpose, if the title acquired proved to be valid.

*475A purchaser who purchases property sold subject to mortgage may become the purchaser under a secondsalemade of the absolute property, disregarding themortgage, and wnen sued by the mortgagee, is not es-topped by his first position, to show that the mortgage was iraudulent and that his second purchase passed the entire title to the property.

*Draffin*for plaintiff; *Kavanaugh*for defendant.

But as Dedmaa was not in possession of the property, it seems to us that the fact of his purchase at a previous sale of the equity of redemption, should not have the effect of converting him into a trustee for the benefit of the mortgagee, and thereby preventing him from purchasing at a sale made at the instance of a creditor, without regard to the mortgage.

Nor do we think that the plaintiff in the execution was stopped by the first sale, which recognized the validity of the mortgage, and was made subject to it, from selling the same property in opposition to the claim of the mortgagee, and contesting the validity of the deed to the martgagee. The right of the mortgagee was not affected by the sale of the equity of redemption, he can. not therefore insist upon that sale as precluding the plaintiff in the execution, from attacking the mortgage upon the ground of fraud, and selling again to satisfy the judgment. If any person would have aright to complain of the second sale it would be the purchaser at the first, but as the same individual purchased in this case at both sales, and insists on the validity of the last, we perceive no good or substantial reason why he should •not be permitted to show that the mortgage was fraudulent, and to sustain the validity of the title acquired by him at the last sale, in opposition to it.

The decision of the Court below which was based upon a different view of the law is deemed erroneous.

Wherefore the judgment is reversed, and cause remanded, that a new trial may be granted, and further proceedings had in conformity with this opinion.