#### JOHN JONES *vs.*ROBERT THOMAS.

A. lield a mortgage on a tract of land, which was subject to the lien of an execution against the mortgagor. At the sale under the execution, the land brought more than the amount of the execution. *Held*that the mortgagee was entitled at law to recover the surplus.

The ease of *Taylor*v Williams, 1 Ircd. Rep. 249, cited and approved.

Appeal from the Superior Court of Law of Henderson county, at Fall Term, 1843, his Honor Judge Djcic presiding.

On the trial below the case was submitted to the court upon the following facts, and it was agreed, that, if the law thereon was for the plaintiff, he should have judgment for $414 23 and costs ; otherwise he should be nonsuited.

Elijah W. Kinsey was indebted to Jones, the plainiiff, in the sum of $611, payable in six annual instalments, with interest from June 28th, 1843 ; and on that day he executed to the plaintiff a mortgage of a tract of land in fee to secure the debt. The land was situate in Henderson county, and the deed was executed there during the term of the County Court, in which a judgment was expected to be rendered in an action therin pending against Kinsey. Of the suit Kinsey informed Jones at the time he made the deed, and the latter undertook to pay the judgment, should it be obtained. *13The judgment was rendered at that term, and issued thereon, under which the sheriff offered the land for sale. A bid was made by a person for it, and the plaintiff then offered to pay the money in discharge of the execution. But, the bidder insisting on his bid, the sheriff refused to receive the money, and proceeded to sell the land ; when, after opposing bids by the first bidder and the plaintiff, the former became the purchaser at the price off465, which exceeded the amount of the execution debt. The plaintiff, before and at the sale, gave notice to the sheriff and to the other bidder, of his mortgage, and exhibited it publicly and claimed the land; and, after the sale, he demanded the surplus of the money after satisfying the execution. But the sheriff refused to pay it to him, and by agreement between Kinsey, the sheriff and the purchaser, the surplus was retained by the latter in satisfaction of debts, which Kinsey owed to him and others. Thereupon this action was instituted against the sheriff to recover the surplus, as belonging to the plaintiff.

The court gave judgment for the plaintiff, and the defendant appealed.

*Hoke,*for the plaintiff, cited *Taylor*v. *Williams,*1 Ired. Rep. 249.

*Badger*for the defendant.

RuffiN, C. J.

The Court affirms the judgment. The case is governed by that of *Taylor*v *Williams,*1 Ired. Rep. 249. It is even stronger than that case, for the good faith of the plaintiff’s mortgage is not questioned. It passed the title to the land perfectly to the plaintiff; subject, indeed, to the encumbrance of a judgment, or, rather, the lien of an execution that might be issued on fhe judgment. The effect of that was, that the land, although the property of the plaintiff, might be taken, if necessary, to pay that debt, but it could be taken for no further purpose. The sheriff’ might' have sold an aliquot part of the land, so many acres, as would pay the debt; and in that case it is plain, the part unsold would have been vested in the plaintiff under his deed, B follows that the surplus of the proceeds belongs to *14him; for the sheriff cannot, by the mode of his proceeding-, essentially vary the rights of the party. It is not material, that the plaintiff has only a mortgage. That vests in him the legal title, with which only we have to deal in this action. Any equities between him and the mortgagor or the assignee of the latter, if there be such under the circumstances, must be settled elsewhere.

Per Curiam, Judgment affirmed^