#### Cyrus A. Allen and Wife *vs.*Thomas Richardson and Others.

Under proceedings in partition, a lot of land was assigned to E. and slie was required to pay T., a co-distributee, a certain sum of money, being the value of his share of the land. E. died, and under proceedings for partition of her estate, A. became the purchaser of the land. Afterwards under executions against A., the land was sold as his property by the sheriff and purchased by T.: *Held,*that T., by thus purchasing the equity of redemption, extinguished his debt against E., for the value of his share of the land.

A distributee, who acquires, under proceedings for partition, a statutory lien on land, by afterwards purchasing the land, otherwise than under proceedings to foreclose his lien, extinguishes his debt or claim as well as his lien on the land.

BEFORE WARDLAW, OH., AT LANCASTER, JUNE SITTINGS, 1855.

These causes (there were several bills in relation, pretty much to the same matters, and between nearly the same parties,) were heard, on exceptions to the commissioner’s report.

In 1834, certain proceedings were had at law for partition of the estate of John Richardson, deceased. Under these proceedings a certain piece or lot of land was vested in Elizabeth, widow of John Richardson, and as the value thereof exceeded her share, she was adjudged to pay, for equality of partition, three hundred and seventy dollars, to Thomas Richardson, a co-distributee. Elizabeth departed this life, and, in 1837, under proceedings for partition of her estate, the lot was sold and purchased by one James Allen, who had married one of her daughters. Allen gave a mortgage to secure payment of the purchase money, after deducting his wife’s distributive share. Under an execution of one Milling *54against Allen, the lot was sold by the sheriff as his property, and purchased by Thomas Richardson for one hundred dollars. The sheriff’s deed of conveyance bore date the 23rd January, 1841.

Among the several questions which arose in the causes, one was, whether the amount due Thomas Richardson from Elizabeth Richardson as his distributive share in the estate of John Richardson, and for which he had’a statutory lien on the lot, was paid, or in any way satisfied or extinguished. The Commissionef reported, with hesitation, that it was unpaid; and exception was taken by the plaintiffs to his report. So much of the Circuit decree as relates to that question is as follows.

"Waedlaw, Ch. The first and most important question is, whether or not the sum of money assessed as the distributive portion of Thomas Richardson in his father’s estate with the lien securing the same under the Act of 1791, has been satisfied and extinguished. The plaintiffs insist that the debt and lien of Thomas Richardson was extinguished by his purchase in 1840, after the lien was created, of the lot pledged, and that the presumption of actual payment to him arises from other circumstances in evidence. The defendants contend that the decree of 1854, fixes the right of Thomas to the sum assessed, subject to deduction only on proof of actual payment in money: and the Commissioner, taking a middle course, confines his investigation to the question, whether or not Thomas, according to the evidence, express and presumptive, has been in fact paid; and comes to the conclusion, with much hesitation, that the evidence of payment is insufficient; the Commissioner considering that the decree settled the right *prima facie*of Thomas to receive, and that it was the province of the Court to determine whether or not he had been paid by operation of law. Some part of the exceptions complains that in another particular the Com*55missioner usurped the functions of the Chancellor in deciding upon equities not referred; hut, so far from deeming this a matter of just reproach, I should have been pleased to have the aid of this officer’s opinion and reasoning upon every question of law and facts in the cause. When a question of law underlies the conclusions the Commissioner is required to report to the Court, it is his duty, and one excused in almost every case,, to determine the question, subject of course to review by the Court. If the question be difficult and fundamental in the suit, he may be excused for asking the previous judgment of the Court; but the better course even then, as promoting the despatch of litigation, is for him to state his views of the question of law and the conclusions which will follow, and, alternatively, the conclusions which will follow from a different determination of the law involved.

The omission of the Commissioner here to decide upon the effect of a purchase of the equity of redemption will result in a recommitment of the report, but not probably occasion delay. It is a narrow and untenable construction of the decree, that the Court in it decided or reserved for its primary decision, any question affecting the fact of payment, however made, to any of the distributees of John and Elizabeth Richardson. The Commissioner was directed to inquire and report how much each distributee has received of the assessments made for partition, in rents or otherwise, and from the proceeds of sales in his hands, after taking into the account for producing equality whatever portions of the shares had been paid, and after the payment of costs, to apply the balance towards-payment of the respective assessments remaining unpaid; and if any surplus remained to distribute this equally among plaintiffs and defendants, the right of Jane Allen and John Richardson to call their guardian James M. Richardson to further account being reserved. I give my version and not the exact words of the decree. Nothing whatever was settled as to the rights of the parties (leaving *56out of view the surplus) except that plaintiffs and defendants were originally entitled to certain sums of money in lieu of tlieir shares in the real estates of intestates with liens upon these estates which had been assigned to two of the distribu-tees, and that they were respectively still entitled to payment, and to lien if they had not been paid: and all questions as to payment were referred to the Commissioner. A consent decree is the mere agreement of the parties under the sanction of the Court, and is to be interpreted as an agreement; and release by a party of his legal rights is not to be rashly deduced from equivocal terms.

The question then is still open, whether or not the purchase by Thomas Richardson of the lot on which he had a statutory mortgage for securing the money assigned to him for his share of his intestate father’s estate, is not a purchase of the equity of redemption merely and an extinguishment of the debt secured by reason of the merger in him of the legal and equitable estate in the mortgaged premises ? This question is settled in the affirmative as to the case of an express and formal mortgage. *Bxparte Gity*Sheriff,, 1 McO. 899; *Schnell*vs. Schroder, Bail. Eq. 338 ; *McLure*vs. Brawley, 6 Rich. Eq. 345. And it seems to me that the reasons of the doctrine in case of express mortgage apply with increased force to a secret lien created by statute, of which no memorandum to give notice is required to be recorded, and where the possession of the mortgagee tends to mislead the unwary. Creditors and purchasers are so liable to be deceived where possession is not coincident with unincumbered title, that it seems politic to restrain and pretermit encumbrances not notorious as far as the law will allow. I conclude that a statutory mortgagee who buys the estate under mortgage, not under process of foreclosure of his lien, extinguishes the debt or claim, with lien on the land.

The smallness of the sum ¡caid by Thomas Richardson on his purchase tends to show that the conclusion of law is con*57sonant -with the facts, and that he considered himself as buying only the equity of redemption.

Besides, the great lapse of time, the receipts on Allen’s mortgage, Allen’s 'Confession for the benefit of Jane Allen and John Richardson only, and the solvency of Elizabeth Richardson in her lifetime and of her estate afterward, go .very far towards satisfying me that Thomas Richardson’s shares have been.in fact paid.

The exception was sustained ; and the report recommitted to the Commissioner.

An appeal was taken in behalf of Thomas Richardson.

Williams, for appellant.

*Moore,*contra.

Per Curiam.

This Court concurs in the Chancellor’s decree; which is hereby affirmed, and the appeal dismissed.

Johnston, Dunkin, and Wardlaw, CC., concurring.

*Appeal dismissed.*