#### *Joseph R. Moss*vs. *John S. Bratton and others.*

On a bill for foreclosure by the mortgagee against tbe mortgagor, the purchaser of the equity of redemption, and a purchaser from him with general warranty, the Court, having all the parties before it, will make such a decree as will satisfy all equities among tho defendants, arising from the caso.

Doctor McClerlrin, on January 30, 1845, mortgaged to the plaintiff a tract of land to secure the payment of a single bill; and also gave to the defendant John S. Bratton, a confession of judgment, which was entered on the same day but after the execution of the mortgage. Bratton had the land levied on by the sheriff under his *fi.*fa., and at the sale became the purchaser. The mortgage had been duly recorded, and notice of it was given at the sale. Afterwards, on March 1,1848, in con*2sideration of $150 to him paid, Bratton conveyed the land, with general warranty, to Hellen Hemingway.

Tire plaintiff obtained judgment at law on the single bill, and Doctor McClerkin being insolvent and absent from the State, he, the plaintiff, having first demanded payment of his debt from Bratton, filed this bill, April 29, 1850, against Doctor McClerkin, John S. Bratton and Hellen Hemingway, for a foreclosure of his mortgage, or payment of his debt in some other mode.

The plaintiff’s claim was resisted, principally by Bratton, on the ground that the entry of his judgment was prior in time to the execution of plaintiff’s mortgage. Bratton also insisted that the plaintiff’s remedy, if he had any, was against the land exclusively.

The cause was first heard, at York, June 1851, before his Honor, Chancellor WaR.di.aw, who ruled, that Bratton was properly a party to the bill, and held, upon the testimony, that the plaintiff had the first lien upon the land. His Honor decreed as follows:

It is ordered and decreed, that it be referred to the Commissioner to enquire and report as to the amount remaining due to the plaintiff upon the debt of McClerkin secured by the mortgage ; and that, upon the coming in of that report, plaintiff may apply to the Court for a sale of the mortgaged premises, for foreclosure, and that Hellen Hemingway may apply for an attachment or execution against the co-defendant, John S. Brat-ton, to compel re-imbursement for any payments she may be compelled to make in satisfaction of the lien of the mortgage : costs to be paid *out*of the proceeds of the sale of the mortgaged premises, if sufficient, otherwise as will be hereafter ordered.

The Commissioner having reported that the amount due to the plaintiff was $147 93, the Court, sitting for York, June 1852, his Honor Chancellor Johnston presiding, made the following decree:

On motion of Witherspoon, complainant’s solicitor, it is or*3dered that the report made by the Commissioner- in the above case and filed 15th June 1852, be confirmed. It is further ordered, that should Doctor McClerkin fail to pay the amount of debt, interest and costs due, on' or before the day of sale, then the said Doctor McClerkin is thereafter to be forever debarred his equity of redemption, and that the Commissioner of this Court do on some public sale day between this and the 1st Monday in January next, or the next convenient sale day, after giving twenty-one days notice, expose to sale, the' land described in the pleadings, to the highest bidder, for cash; and should the land not sell for a sufficient sum to pay the costs according to the decree of Chancellor Wardlaw, will report the sales, amount of costs and deficiency. In either event the Commissioner will report to the next Court in what manner this order has been complied with. *

From this decree Hellen Hemingway appealed on the ground:

Because said decree and order directs a sale of the mortgaged premises, when it is respectfully submitted that the defendant J. S. Bratton, under the circumstances should have been decreed to pay the mortgage debt and costs, inasmuch as said Bratton, with notice of complainant’s mortgage, conveyed the premises, with warranty, to the appellant, and ought not to be permitted to defeat his own title, that he may make the land pay the costs.

*Smith,*for appellant.

*Williams, Witherspoon,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

The decree of 1852 appears to me to be hasty and inaccurate.

If McClerkin after the execution of his mortgage, had sold the mortgaged premises to Bratton, subject to the lien of the mortgage upon it, it cannot be doubted that, as between himself and Bratton, he would have had an equity to have the mortgage debt raised out of the land in the first instance, in exoneration of his own personal responsibility. The purchase *4made by Bratton, from the sheriff, of McClerkin’s equity of redemption, (as defined by the statute of 1791,) had precisely the same effect as if McClerkin had conveyed, to him with notice of, and subject to, the mortgage. He bought McClerkin’s right: i. e., he obtained a title to the land encumbered with' the lien : and he paid for the land just so much as it was worth, over and above the lien : and though he did not become personally bound for the mortgage debt, yet the land, in his hands, was specifically bound, so far as it might suffice, for the payment of that debt.

It appears that Bratton, after his purchase, conveyed the land, with general warranty, to Hellen Hemingway, for $> 150; a sum exceeding the debt and interest due on the mortgage.

He thus received a fund to satisfy the lien ; and as between himself and Miss Hemingway, was bound, by his covenant, to exonerate the land in her hands, from the encumbrance of the mortgage.

All parties being before the Court, my opinion is that such a decree should have been made as would have done complete justice in the case.

The mortgagee was entitled to all his remedies; by a decree for payment, so far as the lien of his mortgage might suffice,— and failing that, then to raise the balance out of McClerkin, his debtor. But, as between the defendants, the decree should have been such as to satisfy all equities among them, arising from the case of the plaintiff against the defendants.

Bratton should be decreed to pay the mortgage debt, in exoneration of his covenantee, Hellen Hemingway: and it is ordered and decreed that he do so; and that he be enforced to the payment by *fi.fa.*or attachment.

If within three months from the filing of this decree and the issue of process thereon as aforesaid, the money be not raised from Bratton, then it is ordered that the Commissioner do proceed to raise it by sale of the mortgaged premises, in the hands of Hellen Hemingway. The sale to be made for cash; after at least twenty-one days public advertisement.

*5Whatever excess may remain after said sale, after satisfying said debt, to be refunded to Hellen Hemingway.

It is further decreed, that if the plaintiff’s debt be not raised in either of the above ways, he have execution or attachment against McClerkin, his debtor, for the deficiency.

It is further decreed, that Hellen Hemingway have remedy over, by *fi. fa.*and attachment against Bratton, for whatever sums may be raised and applied to the mortgage debt, out of the lands conveyed and warranted by him to her.

Lastly it is ordered, that Bratton, who occasioned this suit by resisting the plaintiff’s mortgage, and by failing to pay over to it the price for which he sold the land, do pay the costs of this suit.

And it is ordered, that the order of June 1852 be modified according to the foregoing order and decree.

Any party to be at liberty to apply to the Circuit Court at the foot of this decree, for any further order necessary in the case.

Dunkin, Dargan and Ward law, CC., concurred.

*Decree modified.*