#### *J. M. Gadberry et al.*v. *John McClure et al.*

Columbia,

May, *1850*

The levy and sale of mortgaged lands under executions senior to the mortgage, carries the fee to the purchaser, freed from the encumbrance of the mortgage.

A ground of appeal which contends that it should have been referred to the Commissioner to receive evidence of the existence of personal property sufficient to satisfy executions in exoneration of mortgaged real estate, is answered by the fact that the plaintiff had ample opportunity to take such evidence before the Commissioner before the hearing.

It is competent for a mortgagee of real estate, before its sale under senior executions, to file his bill to compel the execution creditors to take satisfaction out *176of the mortgagor’s personal property, ox any other property he has, pointing it out in his bill, and proving its existence; and ashing that the mortgaged premises be exonerated until the other property he exhausted. It may be competent for him also, after the sale, to come into this Court for a distribution cf the moneys collected, in such manner as to leave the proceeds of the mortgaged real estate to him until the proceeds of the other property are all exhausted by applying them to the executions: but should he fail to proceed in either of these ways, he will, after four years, be barred by the statute of limitations.

A plaintiff will be barred by the statute of limitations of his remedy for the fraudulent breach of an agreement to postpone a sheriff’s sale, whereby he was damnified, if he fail to file his bill within four years.

*Before*Dunk in, Ch., *at Union, June Sittings,*1849.

CIRCUIT DECREE.

Dunkin, Ch. On and before the 10th of January, 1842, there were executions in the sheriff’s office in favor of the complainant, J. M. Gadberry, and of Kitchins and Gowing, against the defendant, Willard; on which executions a balance was then due of $88 63. In the forenoon of that day (10th January, ’42,) Willard confessed a judgment to McLure and Wilson, amounting, with interest and costs, to $124 41; and to C. Gowing a judgment, amounting to $83 15, or, in the aggregate, $207 56; on both which judgments executions were lodged in the sheriff’s office before dinner. About dusk in the evening of the same day Willard executed a mortgage of two tracts of land to the complainants, to secure a debt of $28 50 to R. J. Gage, and $L12 to J. M. Gadberry, and to indemnify R. J. Gage and Gad Clark as sureties on a recognizance. The mortgage was recorded next day. On the 11th January, 1842, sheriff Johnson levied on one of ihese tracts, containing 110 acres, by virtue of executions in his office, and on the 14th February, 1842, he levied on the other tract of eighty acres. He sold the land at sale day in December, 1842. The defendant, John McLure, purchased both tracts — the former for $250, and the latter for $85. He settled with the sheriff 18th August, 1843, by signing a receipt for the amount of the execution of McLure and Wilson, and paying the balance in cash. McLure afterwards sold the laud to his co-defendants, Spencer and Sketlan, at enhanced prices.

On the 27th April, 1847, Ibis bill was filed, alleging, among other things, that the complainant, Gadberry, was surprised in regard to the time of the sale of the land, and also that the defendant, Willard, had personal property which should have been subjected to the satisfaction of the executions. It is also insisted that only the equity of redemption was sold by the sheriff.

In respect to the surprise, no evidence was offered. • As *to*
      *177the personal property, the sheriff testified that about a week after the sale of the land he received from the defendant, Willard, corn and fodder to the amount of sixty-two dollars.

On the reasoning and authority of *ex parte Stagg,*the Court is of opinion ihat the executions of the 10th January, 1842, have priority to the complainant’s mortgage. The sheriff’s sale of the 5th December, 1842, seems to have been and *bona fide*in every respect, and there is no ground to question the title of the purchaser, or of his subsequent ven-dees. It seems, too, that the sale of neither tract was, in itself, sufficient to discharge the existing executions. Again, the sheriff having in his office existing executions amounting altogether to about $296, and having sold real estate for $335, subsequently received from the defendant in the execution corn and fodder to the amount of $62. He then pays over to the execution creditors the amount of their several demands. If the sheriff were now a party defendant, and the mortgagee had not a plain and adequate remedy at law, there might be ground for giving relief to ibe mortgagee against the sheriff. But in August, 1843, the defendant, McLure, received from the sheriff only the money to which he was entitled, and the Court can perceive no principle upon which he can be called to account or to refund.

1 N. & McC, R. 405.

It is ordered and decreed that the bill be dismissed.

Thp complainants appealed, and moved the Court of Appeals to reverse or modify the decree of the Chancellor, on the following grounds, viz:

1st. Because there was error in the decree of the Chancellor, on the circuit, in giving a preference to the judgments and executions against Thomas E. Willard, of the 10th January, 1842, which were of the same date of the complainants’s mortgage against Thomas E. Willard, as in equity the complainant, James M. Gadberry, the mortgagee, though his mortgage was executed at a later hour of the day, on the 10th January, 1842, still the mortgagee was entitled to be paid before the judgment creditors of that date, or at least to his just and equitable share of the real value of the lauds mortgaged.

2d. Because, from the proofs in the cause, it'was apparent that there was personal property of the defendant, Thomas E. Willard, amply sufficient to pay all the judgments against the said T. E. Willard, of a date prior to the 10th January, 1842,.and thereby to leave at least one of the tracts mortgaged to the payment of the complainants’s mortgaged debt.

3d. Because the defendants, McLure and Wilson, took an unconscientious advantage of the complainant, Jas. M. Gad-berry, in using his executions against Thos. E. Willard *et al.*to his prejudice, and pressing the sale of the mortgaged premises, in the absence of the mortgagee, when it had been agreed *178to postpone the sale of the said lands, as was charged in the an(j not ¿enie(j jn the answer.

4tp_ Because, under the circumstances of the case, the she- ^ ^44 not¡ an¿ jn fact did not, sell anything but the equity of redemption of Thos. E. Willard, in the mortgaged premises, as appears from the prices at which John McLure, one of the execution creditors, bought and sold the same.

5th. Because the defendants should not have been permitted to go into evidence to fix the hours of the day, of 10th January, 1842, at which judgments and mortgage against Thos. E. Willard were severally created, as fractions of a day in such case, in law and equity, are not to be regarded.

6th. Because the matters of account should have been referred to the Commissioner, where the complainant, Jas. M. Gadberry, can clearly show there was personal property of Thos. E. Willard, to have secured the lands to the mortgagee.

7th. Because the decree should have required the defendants, John McLure and Clinton Wilson, to contribute, or the lands should have been ordered to be sold to foreclose the mortgage.

*A. W.*Thomson, for the motion.

*Dawkins,*contra.

*Curia, per*

Johnston, Ch.

No doubt the levy and sale of the lands, under the executions senior to the mortgage, carried the fee to the purchaser, freed from the incumbrance of the mortgage. k

It was competent for the mortgagees to have filed their bill before the sale, to compel the execution creditors to take satisfaction out of Willard’s personal property, or any other property he had, pointing it out in the bill, and proving its existence (as to which there is no evidence, however): and asking that the mortgaged premises be exonerated until the other, property was exhausted.

It may have been competent for them, also, after the sale, to come into this Court for a distribution of the proceeds of the moneys collected, in such manner as to leave the proceeds of the mortgaged lands to the mortgagees, until the proceeds of the other property were all exhausted by applying them to the executions.

But they failed to proceed in either of these ways until barred by the statute of limitations — which is pleaded in the answer.

There is no proof of the fraud charged in one of the grounds of appeal — wherein it is stated that there was an agreement to postpone the sale, which is alleged to have been violated by bringing it on in Gadberry’s absence; and if such fraud had been proved, the plaintiffs were barred of their remedy for it, by not filing their bill within four years.

*179The ground which contends that it should have been referred to the Commissioner to receive evidence of the existence of personal property sufficient to satisfy .the executions, is answered by this : — that the plaintiffs had ample opportunity to take such evidence before the Commissioner before the hearing. The plaintiffs were bound to make out a case to be sent to the Commissioner, but failed to do so. It would have been singular to send the case to the Commissioner to take the accounts, and allow the case to be made out there. The case should have been made out in the first instance, and the account taken afterwards.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin' and Dargan, CC., concurred.

*Decree affirmed.*