
    *Conrad v. Harrison and Others.
    March, 1832.
    (Absent Brooke, J.)
    Mortgages — Subsequent Mortgage of Same Land-Order of Liability. — S. mortgages a parcel of 360 acres of land to B. to secure a debt due to him; then S. mortgages all of the same land, except 75 acres, to H. to secure debt due to him, these 75 acres being excepted and reserved out of this second mortgage, because the mortgagor was then in treaty with a third person for the sale thereof to him, which treaty was afterwards broken off; and then S. mortgages the whole parcel of 360 acres to C. to secure a debt due to him: Held,
    1. Same — Same- Marshalling Assets. — That H. the second mortgagee, has a right, as against Sisson the mortgagor, B. the first mortgagee and C. the third mortgagee, to insist that the debt due to B. shall be satisfied out of the parcel of 75 acres reserved out of the second mortgage to PI. so as to leave that part of the subject mortgaged to H. untouched, and applicable to the satisfaction of th e debt due him; and.
    2. Same-Same — Order of Liability. — That C. the third mortgagee, has no right to call on H. the second mortgagee, to contribute, pro rata, to the satisfaction of the debt due to B the first mortgagee.
    Same — Case Doubted. — The proposition, that where "a judgment is recovered against a debtor, and then the debtor aliens his lands to divers alienees by divers conveyances, all the debtor’s lands, in the hands of his several alienees, are alike liable to the judgment creditor, and the lands in the hands of the several alienees must contribute pro rata to satisfy the judgment,” stated by the court in Beverley v. Brooke, 2 Leigh, 426, doubted, but held not applicable to the present case.
    
      John Brock, bjT deed dated the 4th June, 1817, sold and conveyed to Jesse Sisson, a parcel of 360 acres of land in the county of Rockingham, for 7000 dollars; of which Sis-son paid Brock 2000 dollars in cash, and, by deed of the same date, conveyed the whole of the land to Henry Gambill, in trust to secure the payment of the balance of the purchase money, 5000 dollars, in instal-ments. Sisson, having made sundry payments to Brock, and reduced the debt he owed him to about 400 dollars, and being indebted to Reuben Harrison and Jesse Cravens, in the sum of 3212 dollars, by deed dated the 23rd February 1822, conveyed the land he had bought of Brock, “except about 75 acres on the east side of the tract, which the said Sisson was about to sell to Peter Durrow,” to Philip Koontz, in trust *to secure the debt of 3212 dollars due to Harrison and Cravens. At the time this last mentioned deed of trust was executed, Sisson was in treaty with Durrow, for the sale to him of the 75 acres reserved by the deed; but that treaty was afterwards broken off, and no sale was made to Durrow. By deed dated the 4th April 1824, Sisson conveyed the whole of the land he had bought of Brock (including the 75 acres, which he had reserved out of his mortgage to Harrison and Cravens) to the same Philip Koontz, in trust to secure the payment of a debt of 820 dollars due to Henry Conrad. All these deeds were duly recorded: besides, Conrad, as well as his trustee Koontz, had full notice of all the preceding conveyances and incum-brances ; and Harrison and Cravens, when they took their mortgage of February 1822, had full notice of the previous mortgage to Brock. After the execution of the deed of trust to secure the debt due to Conrad, Harrison, one of the cestuis que trust and creditors secured by the deed of February 1822, purchased Sisson’s equity of redemption in the whole of the land that had been bought of Brock, and procured from Brock, ah assignment of his claim for the balance of about 400 dollars yet remaining due to him, and of the deed of trust of the 4th June 1817, executed by Sisson to secure the debt to Brock.
    In a bill exhibited in the superiour court of chancery of Staunton, by Conrad against Harrison, Cravens, Sisson, and the trustee Gambill (the trustee Koontz was not a party, having died before suit brought) the purpose of which was to adjust the rights of the incumbrancers, and to settle the priorities among them ; Conrad insisted, that the balance of 400 dollars due to Brock and by him assigned to Harrison, should be satisfied out of that part of the land, which was mortgaged to Harrison and Cravens, by the deed of trust executed bjr Sisson to Koontz, of February 1824, leaving the 75 acres (reserved by the exception in that deed) which Sisson was then about to sell to Durrow, untouched, and applicable, in the first instance, to the satisfaction of the *debt of 820 dollars secured to Conrad by Sisson’s deed of trust to Koontz of April 1824. And Harrison and Cravens, in their answers, insisted, that the 400 dollars, balance of the debt due and secured to Brock by Sisson’s deed of trust to Gambill ¡ of June 1817, to which Harrison was entitled by assignment from Brock, ought to be charged upon and satisfied out of the 75 acres, which were reserved in Sisson’s deed of trust to Koontz to secure the debt due Harrison and Cravens, leaving that part of the land which was mortgaged by that deed, untouched, and applicable to the satisfaction of the debt of 3212 dollars thereby secured to Harrison and Cravens.
    The chancellor declared, that Conrad had no right to require, that the 75 acres should be exempted from the lien of Brock’s mortgage of June 1817, to the benefit whereof Harrison was entitled, since the effect of such exemption would be to throw the whole burden of that first incumbrance, upon the only subject embraced b3' the second mortgage to Harrison and Cravens, of February 1822, for the advantage of Conrad, the third and last incumbrancer. Therefore, he decreed and ordered, That the 75 acres should be sold by the marshal of the court, and that the nett proceeds of the sale thereof should be applied, first to the payment, to Harrison as assignee of Brock, of the balance due upon Brock’s mortgage of June 1817, and the residue, if any, to the payment of the debt due to Conrad upon his mortgage of April 1824. And that, the 75 acres being first sold, the residue of the land should then be sold by the marshal, and the nett proceeds of sale applied in the following order: 1st, to the payment of any balance of the debt due to Harrison on Brock’s mortgage, that might remain unsatisfied after applying the proceeds of sale of the 75 acres to that debt; 2ndly, to the payment, to Harrison and Cravens, of the debt due them on their mortgage of February 1822 ; 3rdly, to the payment of the debt due Conrad, upon his mortgage of April 1824; and 4thly, if there should be any balance remaining, that should *be paid into court, subject to future order. From this decree, Conrad appealed to this court.
    Johnson, for the appellant.
    1. Conrad was entitled to priority of satisfaction out of the parcel of 75 acres. For, the intent of the parties to the deed of February 1822, whereby 75 acres of the land, which Sisson was about to sell to Durrow, was excepted and reserved out of the mortgage to Harrison and Cravens, was, to enable Sisson to sell that parcel of 75 acres, clear and unin-cumbered to Durrow ; and if that parcel had been sold to Durrow, Harrison and Cravens, who, with such intent, and with full knowledge of Brock’s inctfmbrance at the time, assented to the reservation of it, ought not to have been allowed, as against Dur-row, to insist that the debt due to Brock should be charged upon it, in exoneration of the parcel mortgaged to them. (Neither could their rights be varied or made better, by the circumstance, that, not Dur-row, but Conrad, became the purchaser of the 75 acres; they intended to leave it in Sisson’s power, to sell a clear unincumbered title in that parcel; and it made no odds to them, who was the purchaser. But, 2. supposing Conrad not to be entitled to priority in respect of the 75 acres; yet here, in effect, the whole of the subject was first mortgaged to Brock, and then part of it mortgaged to Harrison and Cravens, and last, the residue of it mortgaged to Conrad. And Conrad has a right to insist, that the part mortgaged to Harrison and Cravens, shall contribute, rateably with the part mortgaged to him, to the satisfaction of the debt due to Brock the eldest incumbrancer; and this in strict analogy to the settled principle of the law, that if a judgment be recovered binding the lands of the debtor, and then the debtor sell parcels of the lands to several purchasers, at several times, all the purchasers shall contribute, in just proportion, to the satisfaction of the judgment. 5 Vin. Abr. Contribution and Average, A. pi. 3, 4, 6, 7, 12, 19, p. S61, 2; 6 Bac. Abr. Scire facias, C. S, p. 114, 115; Har-bert’s case, 3 Co. 11. The doctrine has *been applied in equity; and so applied, as to compel several purchasers of lands previouslj' ■ mortgaged, to contribute to the satisfaction of the debt due on the mortgage. Cheesborough v. Millard, 1 Johns. Ch. Rep. 409; Mayo v. Tomkies, 6 Munf. 520, 8; Chamberlayne v. Temple, 2 Rand. 384. In Beverley v. Brooke, 2 Heigh, 426, 439, 444, where a judgment had been recovered against a debtor holding lands, and the debtor had afterwards aliened his lands to several purchasers at divers times, I endeavoured to maintain, for the eldest purchaser, that the lands in the hands of the junior purchaser, ought, in equity, to be first subjected and applied to the satisfaction of the judgment debt: but the court held, that the law was perfectly settled otherwise; that “all the alienees of the lands of a debtor bound by a judgment or recognizance, no matter in what order the alienations were made, are bound to bear equally the burden of satisfying the judgment, by mutual contributions, pro rata, according to the value of the property held by them; all being considered as in aequali jure, without regard to the priority of their purchases or conveyances.”
    Leigh, for the appellees.
    1. When Harrison and Cravens took their mortgage of February 1822, whereby the 75 acres, which Sisson was about to sell Durrow, were reserved out of the mortgage, they had no other intent than to obtain adequate security for the debt due to them, and they acted under the belief, that the part of the land mortgaged to them was adequate security for the debt. They knew that Brock had a mortgage of the whole land; and that they would have a right, as against Brock and Sisson, to compel Brock to take satisfaction out of the part which was mortgaged to him but not to them. It was no part of their duty to take care of the interests of Durrow, or any other purchaser from Sis-son, of the 75 acres. It was the purchaser’s business to take care of himself, and to see that the purchase money he contracted to pay Sisson, should be applied to relieve the subject from Brock’s incumbrance. The *purchaser of the 75 acres stood in Sisson’s place; he purchased Sis-son’s rights; he purchased subject to all claims, legal or equitable, which attached thereto in Sisson’s hands. 2. As to the question of contribution among the junior mortgagees, to satisfy the eldest mortgage; the proposition contended for, seems hardly reconcileable with the fundamental principle or maxim, that regulates priorities among equitable incumbrancers: Qui prior est in tempore, potior est in jure. To say, that in the case of a mortgage of a subject, followed by successive mortgages of the equity of redemption of the whole of the same subject, every elder shall have priority over every junior mortgagee throughout' — ■ but that, if after the mortgage of the whole subject, there shall be several mortgages of several parts of it, to different persons, at different times, all the junior mortgagees of the equity of redemption, shall contribute, pro rata, out of the parts mortgaged to them, respectively, to pay off the debt due on the first mortgage, — -seems a very odd distinction. There may be more reason, perhaps, for a distinction between the cases of subsequent absolute purchasers of parcels of a subject under mortgage, and mere mortgagees of the parcels: but even this distinction would be irreconcileable with general principles of equity. Chancellor Kent has decided, upon full consideration and the strongest reason, that there shall be no contribution between purchasers, at several times, in succession, of several parcels of lands under the lien of a prior judgment, or of a prior mortgage. Gill v. Lyon, 1 John. Ch. Rep. 447; Cloves v. Dickenson, 5 Id. 235, 241, 2. I must own, that, in the argument of Beverley v. Brooke, though Mr. Johnson did not cite the decisions of chancellor Kent in the cases just mentioned, yet he urged, and with great force too, the same general reasoning, on which that judge, founded his opinion ; but as it was only a minor point in that cause, and no authorities upon it were cited at the bar, the argument in support of it was not reported. But Beverley v. Brooke is not exactly in point to the present case: the eldest lien in that case, '-was a judgment; and this court sitting in chancery, placed the subsequent mortgagees in the same situation, in which it supposed the law would have placed them, if the judgment creditor had sued out a scire facias against them as terre tenants. Mayo v. Tomkies is not at all in point: there, the subsequent purchasers of the parcels of the mortgaged lands, claimed under a devise which charged the parcels equally.
    
      
      Successive Alienation of Incumbered Land — Order of Liability. — On this question the principal case is cited in the following: McClung v. Bierne, 10 Leigh 402. 403, and note; Henkle v. Allstadt, 4 Gratt. 292; Alley v. Rogers, 19 Gratt. 389. and note: Jones v. Phelan. 20 Gratt. 241. 242, 243; McClintic v. Wise, 25 Gratt. 456: Whitten v. Saunders, 75 Va. 569; Miller v. Holland, 84 Va. 656, 5 S. E. Rep. 701; 2 Va. Law Reg. 702. To the point that where part of a tract of land subject to alien is convened, the residue is primarily liable for the whole debt, the principal case is cited in Baugher v Eichelberger, 11 W. Va. 226; Payne v. Webb, 23 W. Va. 564.
      See monographic notes on “Mortgages” appended to Forkner v. Stuart. 6 Gratt. 197. and “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
    
   CARR, J.

The only serious question in this case, is that which has been raised, and very well argued, on the subject of contribution. I have laboured exceedingly, to understand it; but I feel doubtful of my success; especially, as the present inclination of my mind seems opposed to my former opinion.

I premise, that I do not think this question at all affected by the exception or reservation in the deed from Sisson to Koontz for the benefit of Harrison and Cravens, nor by the understanding, which the appellant’s counsel supposed, existed between the parties to that deed. For the intent and design of the parties, we must consult the deed itself. That gives a lien on Sisson’s land, except 75 acres on the east side of the tract. As to the land thus excepted, Harrison and Cravens have no claim on it as a security for the debt due them: but that is all: they say nothing as to the effect of Brock’s lien upon it; much less do they stipulate to relinquish any right, which their position as incumbrancers may give them, to throw Brock’s lien on this excepted land. We must, then, decide this as a general question.

Considering Conrad’s claim to preference over Harrison, by throwing Brock’s lien off the 75 acres, wholly unfounded, has he a right to stand on equal ground with Harrison? to claim a rateable contribution of him, in the payment of Brock’s debt? It lies at the very root of this doctrine of contribution, that the parties shall stand in rcquali jure. The vendor or his heir can never call on his vendee for contribution. Suppose, after Sisson’s deed to Harrison *and Cravens, and before that to Conrad, Brock’s trustee had advertised, and sold the 75 acres retained by Sisson ; he could never have called on Harrison to bear his part of a common burden. So far from it, if Brock’s trustee had advertised the whole land for sale, there can be no doubt, that Harrison and Cravens could have injoined the sale of the part covered by their deed, until it should be found, that the sale of Sisson’s 75 acres would not satisfy Brock’s lien ; and for such deficiency only would the residue of the land have been liable. So, if Sisson' had died, and this land (the 75 acres) [had descended to his heirs, it would have been first liable in their hands, nor could they have asked contribution of any' body; except indeed of each other, if they had borne the burden unequally. Harrison and Cravens, then, having this 75 acres between them and Brock’s lien, when they took their deed, is there any act or omission of their’s since, which could deprive him of this protection? None such is relied on. Could the sale or mortgage of this 75 acres by Sisson to Conrad, with full notice, change the equity of the parties, and give Conrad a right to contribution, which all must admit Sisson had not? This would violate that settled rule, that a vendee with notice, takes the land with all its equitable burdens, and stands precisely in the shoes of his vendor. Hook at the position of these parties; do they stand in sequali jure? I think not. Harrison and Cravens took their deed, knoiving they had the 75 acres between them in danger: Conrad took the 75 acres, with the same knowledge: a knowledge calculated, essentially, to influence the contract of each. Suppose a man had bought a thousand acres of land, at the price of 10,000 dollars; that he had mortgaged it for the purchase money, and had paid all of it but 1000 dollars; and another wants to buy a hundred acres of this land: in making his contract, it will not weigh a feather in the scale, that the whole tract is still bound for 1000 dollars, while he knows that nine hundred acres still remain in his vendor’s hands liable for this balance, before the hundred acres he proposes *to buy can be charged. He would, without hesitation, give the full price, and pay the money, satisfied that the Hen could never touch him. But suppose the vendee of the thousand acres, had sold to different purchasers nine hundred acres, and offered the last hundred to another, with the original lien for 1000 dollars still on the tract? assuredly, his prospects in the purchase would be very different; and common prudence would induce him to pause, till he should see clearly how the incumbrance was to be met. It seems plain to me, therefore, "that the successive purchasers, or incumbrancers, do not stand in aequali jure; and that no one who comes, after, can call on those before him for contribution. Sir W. Harbert’s case, 3 Co. 11, b, when carefully examined, will be found to rest on these principles of equity. The same subject is very ably handled by chancellor Kent, in several cases; especially in Clowes v. Dickenson.

If it be asked, how I can reconcile this decision with that of Beverley v. Brooke, in which I sat, and agreed fully with the rest of the court? I answer, that I cannot reconcile them to my own satisfaction. I can only say, that, in each, I have decided as I thought right. I well remember to have examined with care, the authorities cited in Beverley' v. Brooke, by our excellent and learned brother [Green, J.] whose aid I most sincerely' wish we had now ; and to have thought his deductions from them correct. In that case, the decisions of_chan-cellor Kent now cited, so powerful in their reasoning, seemed to have escaped both the bar and the bench. There was no reference to them. The counsel, indeed, took the ground in argument; but we thought all the authorities were the other way.

I am for affirming the decree.

CABELL, J.

As to the first point, it is enough to say, that I concur with judge Carr, that the exception of the 75 acres out of the deed of trust of February 1822, to secure the debt due Harrison and Cravens, furnishes no ground to sustain Conrad’s claim to priority of satisfaction out of that reserved parcel.

*The other question is, Whether, on general principles, Brock’s debt, which every body admits must be provided for, is to be first charged on the parcel of 75 acres? or whether it is to be charged, rateably, on that parcel and on the residue of the land conveyed in trust to Cravens and Harrison? There is no difference, as to this question, between creditors secured by mortgage, and creditors secured by deed of trust; and as the case may be thereby simplified, I will consider it as if Sisson were mortgagor and Brock mortgagee of the whole tract, and Harrison and Cravens, and Conrad, were subsequent mortgagees, each, of particular parts of the tract.

All mortgages, whether original or subsequent, are regarded, in a court of equity', as mere equitable incumbrances for the security of the debt; and it is the business of that court, so to mould and direct these equities, as to effect the purposes of justice.

If there were no other persons concerned in this case, than Sisson the mortgagor, Brock the first mortgagee, and Harrison and Cravens the second mortgagees, all would admit, that a court of equity', in providing payment for Brock’s debt, ought so to direct it as not unnecessarily to lessen or impair the security of Harris on and Cravens; and, consequently, that Brock’s lien ought to be made to fall, in the first ■place, on the 75 acres not included in the mortgage to Harrisoh and Cravens, and in which Sisson and Brock were alone interested. If this would'be so, in that case, I cannot conceive how the alienee of Sis-son’s equity of redemption, can stand on better ground than Sisson himself. And, accordingly, there never has been a case, where one of two subsequent mortgagees were held to be contributory to the other. They are not in equal right; but the last mortgage takes in subordination to him who precedes him.

It is supposed, that the case of Beverley v. Brooke is in conflict with these principles. But that case is different from this, in some important respects. That was not the *case of subsequent incumbrances, after a prior mortgage, but after a prior judgment. In that case, English had obtained a judgment against Pickett, who afterwards mortgaged a part of his lands to Beverley, and then, the whole to Scott. English, by his judgment, had a legal lien, and could have taken out an elegit against all the lands of Pickett; and it was not competent to a court of equity, to restrain or limit him in the exercise of that legal right. Besides, he was not plaintiff, nor did he ask any thing of a court of equity. He stood on his legal rights, which bound all of Pickett’s lands; and this court, conforming to the law, executed that lien, by directing that all the lands should contribute, rateably towards the satisfaction of his judgment. Whether that decision was right or not, it will be time enough to inquire when a similar case shall occur. It is sufficient, for the present, to say,- that that case is materially different from this; for here, the original lien is merely an equitable incumbrance, and not a lien by judgment; and here, the person claiming contribution, is plaintiff in equity, and therefore, can ask nothing but equity.

I concur in the opinion, that the decree should be affirmed.

TUCKER, P.

The rights of- the parties in this case, must first be examined upon general principles of law, independent of the influence, which the exception in the deed of trust of February 1822, is supposed to have upon it. In this regard, Conrad’s pretensions will be found to rest on no reasonable foundation. Brock having a deed of trust on the whole land, and Harrison and Cravens a subsequent deed of trust on one part of it, and Conrad a still later deed of trust on the whole, it is found, that there will not be enough to pay all. Brock must be paid, for he has the first lien. Harrison and Cravens, or Conrad, must lose. Which ought to be the loser, the prior or the subsequent incumbrancer? The latter, assuredly. Conrad does not think so: but he can sustain his claim, only by shewing that he has a right, either to throw the whole burden from his ^shoulders uppn Harrison and Cravens, or a part of that burden by compelling them to pay rateably.

That Conrad should throw the whole burden upon Harrison and Cravens, who obtained their lien before he obtained his, would indeed be without example. The principle is clear, that where a first in-cumbrancer (as Brock in this case) has two funds to resort to, and a subsequent incum-brancer but one, the latter may compel the former to seek satisfaction out of that on which he has no lien, provided he does not thereby interfere with the superiour rights of a third person. Thus, if Harrison and Cravens had no incumbrance, Conrad might demand that his 75 acres should be relieved, and the burden thrown on that portion which would yet have remained in the debtor’s hands. But Harrison and Cravens have an incumbrance on that part; an incumbrance prior to Conrad’s; and it would reverse the order of things, and upturn the established principles oí equity, if he, who is subsequent in point of time, should be prior in point of right. Conrad, therefore, has no pretension to throw the whole burden upon Harrison and Cravens.

Neither is he entitled to throw any part of the burden upon them. Before he purchased, no person had that right. His purchase was made with knowledge of their lien, and of Brock’s incumbrance, and with presumed knowledge of the legal effect of those liens. Would it be just or reasonable, that Harrison and Crávens, without any fault, or assent on their part, should thus be incumbered with any part of this burden? Ear otherwise; for they not only have a right to resist Conrad’s pretensions to throw the burden on them, but if Brock himself had been about to do so, they would have been entitled to demand that the whole burden should have been thrown upon Conrad. This is a necessary consequence of the principle of equity, already stated, that where a first incumbrancer has two funds to resort to, and the subsequent incumbrancer can only charge one of them, the first incumbrancer shall be corn-pelled to seek redress, *in the first instance from the other fund. Thus, if Sisson still held the 75 acres of land, Harrison and Cravens would have a clear right to demand that Brock’s 400 dollars should be paid out of that parcel, if adequate to the purpose, so as to leave their fund untouched. It is no sufficient objection to this, that Harrison and Cravens would thus, in effect, have satisfaction out of a fund on which they had no lien. That objection has never been considered availing, since the case of Lanoy v. The duke of Athol, 2 Atk. 444. See Attorney General v. Tyndall, Amb. 614; Aldrich v. Cooper, 8 Ves. 381. The principle is firmly established, and cannot now be called in question, that if two funds of a debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort, in order that he may avail himself of his only security.

Now, if upon the execution of the deed of trust to them, Harrison and Cravens had this right against Sisson, they must have the same right against Conrad, because when Conrad purchased, he took his -75 acres, subject to its liability in the hands of the debtor, in preference to the land already incumbered to Harrison and Cravens. He sits (as has been well said) in the seat of his grantor, and must take the land with all its equitable burdens. It cannot be in the power of the debtor, by the act of selling the remaining land to discharge it, and throw the burden back upon Harrison and Cravens. If so, we should then have this unheard of state of things, that one man shall lose his rights and property, without his fault or his assent, and another shall be enabled to take them awaj' without an equivalent. The equity of Harrison and Cravens, therefore, as against Sisson, to throw the burden upon his 75 acres, still subsists as against Conrad, who purchased from him with a full knowledge of all the facts, and a presumed knowledge of all the legal consequences of those facts.

But it is said to be settled, that all the alienees of the lands of a debtor, are bound to contiibute, rateably, to the *satisfaction of a judgment which binds them, without regard to the time or order of their purchases. And it is contended, that the case of a mortgage does not differ from that of a judgment, nor the case of incumbrancers from that of alienees.

That the principle contended for is in direct conflict with that which, I think, has been already shewn to be established, is sufficiently obvious. That it is in conflict with the reason of the thing, seems equally plain. “If,” says chancellor Kent, “there ibe several purchasers in succession, at different times, I apprehend, that, in that case also, there is no equality, and no contribution as between those purchasers. Thus, for instance, if there be a judgment against a person owning three acres of land, and he sells one acre to A. the two remaining acres are first chargeable in equity, with the payment of the judgment debt, whether the land be in the hands of the debtor or of his heirs. If he sells another acre to B. the remaining acre is then chargeable, in the first instance, with the debt as against B. as well as against A. and if it should prove insufficient, then the acre sold to B. ought to supply the deficiency, in preference to the acre sold to A. because, when B. purchased, he took his land chargeable with the debt in the hands of the debtor, in preference to the land already sold to A. In this respect, we may say of him, as is said of the heir, he sits in the seat of his grantor, and must take the land with all its equitable burdens. It cannot be in the power of the debtor, by the act of assigning or selling his remaining land, to throw the burden of the judgment, or a rateable part of it, back upon A.” Upon these principles, set forth in Clowes v. Dickenson, chancellor Kent proceeded in that case, and on the same principles, he had previously decided the case of Gill v. Lyons. I do not perceive how the reasoning, or the conclusion, of the judge can be successfully controverted. His decisions, indeed, are not binding authority upon this court; but we are bound to follow the light of reason, from whatever luminary it may be poured upon us.

*Sustained by this high opinion, I should have no difficulty in pronouncing, that a subsequent alienee or in-cumbrancer of one of several mortgaged subjects, can never call upon a precedent incumbrancer of another, for contribution, but for the case of Beverley v. Brooke, in which the common law doctrines are cited, approved and enforced, in reference to incumbrancers, and that too in a court of equity. Without questioning the truth of the doctrine at law, I should have conceived the principles of chancellor Kent would have prevailed in equity. The distinction between the cases grows out of the difference of the tribunals, as happens in a thousand instances. It rests upon principles of equity unknown to the common law, and the creatures of courts of chancery; principles, which form a part of that artificial but beneficent system, which has so admirably contrived to soften the rigour of the common law, and to transfer the purest ethics through the whole of our jurisprudence.

While, however, the case of Beverley v. Brooke stands as the law of the court, wc are not justified in taking a distinction from the difference of the tribunals of law and equity: that was a case in equity as well as this. But that was the case of a judgment; this, of a mortgage: and if I could see no distinction between them, I should not be disposed to extend to this case, as it is not identical, a principle with which my reason is not satisfied. There is, however, some distinction between the cases. The right of the purchasers, as we are told in the authorities cited, is not to compel each other to contribute, but to force the plaintiff in the judgment, by audita querela or scire facias, to issue his execution against all. If this is not done and one pays all, it would seem he is without remedy. 3 Co. 14, b. But, in the case of the mortgagee, there are no means of compelling him, at law, to turn all the parties out of the mortgaged premises. His title is at law absolute as to the whole. The incumbrancer who would enforce contribution, can only have it in equity: and if he asks it there, he must shew that he has equity; and this, I take it, the last in-cumbrancer cannot shew, as against the prior mortgagee.

*It remains, as to this part of the case, only to say that the exception or reservation of the 75 acres, contained in the deed of trust to Harrison and Cravens, can have no influence in withdrawing the case from the influence of general principles. The argument was, indeed, stron g and imposing, and if there could have been no other motives for the exception than the protection of the 75 acres from the operation of this equitable principle, it would present a question of much difficulty. But there was another ample and more obvious motive for this exception : the protection of these 75 acres from Harrison and Cravens’s lien for 3212 dollars. Brock’s lien was trivial; the debt due him was reduced to 400 dollars: it could prove no obstruction to a sale: who ever purchased could easily clear it off with part of the purchase money. Not so, if it had been bound for the 3212 dollars. If offered for sale, it might well have been objected that that large debt would sweep the whole. If once bound, Harrison and Cravens might have been unwilling to release it, unless they got the whole proceeds of sale, which would have thwarted the views of Sisson, who wished the command of these funds. These, I conceive were the views of the parties. They are, at least, more likely to have been the operative motives, than a protection for a mere equitable right, of which, it is very probable, not one of the parties to the instrument had any knowledge or conception. We cannot consider the exception, therefore, as a waiver of that right, since it may be ascribed to a different and more obvious consideration.

Decree affirmed in omnibus.  