
    James G. Stanly v. Lewis Stocks, Wright C. Stanly, and Samuel Street,
    From Craven
    Where lands conveyed in mortgage were sold by the mortgagor in separate parcels, the first vendee has no equity to marshall the whole mortgage debt upon a second — the latter having no notice of the purchase of the first.
    If the second vendee had notice of the purchase of the first, would that fact alter the rule. Qu ?
    But where the first vendee paid his purchase money in extinguish, ment of the mortgage, and the second did not, held upon an ad. justment of the loss between them, that the payment of the first was to be estimated in bis favor.
    This was an appeal from a decree made by his honor Judge Martin, on the Fall Circuit of 1828.
    The facts ascertained by his Honor, and set forfli in the decree were, that the Defendant Stocks being indebted to the Plaintiff in the sum of 1,280 dollars, by deed dated the 6th of March, 1824, mortgaged to him a tract of land in Craven County — that the Defendant Wright C. Stanly on the 3d of May, 1824, purchased a part of the mortgaged premises from the Defendant Stocks, and on that day received a deed for it with covenants of sei-sin, warranty and quiet enjoyment, and paid the purchase money to the Plaintiff — that the Defendant Street on the 8th of December, 1824, purchased of the Defendant Stocks 
      íhc residue of the mortgaged premises, and on that received a deed therefor, with covenants of seisin, war- , ratify and qmet enjoyment, and paid the parchase money to tilt; Defendant Stocks — that there was due upon the debt scram! by the mortgage to the Plaintiff, the smn of ¿y¿44 50 with interest. “It; was therefore ordered, adjudged and decreed, that the Defendant Street within forty days pay to the Plaintiff the said scat of S244 50 v/ith the interest thereon, and in default cf such payment, that this Clerk and Master sell the lands mentioned in the answer of the Defendant Street, and apply the proceeds thereof to the payment of the said sum of g>244 50, and in case the proceeds of the said sale should not amount to a sum nuSlcient to pay the said deist, then that the said Clerk and Master sell the lands mentioned in the answer c»f the Defendant i¿fright C. Stanly, and apply the proceeds thereof to the satisfaction of the said mortgage, after deducting therefrom the proceeds of the land mentioned in the answer of the Defendant Street.™
    
    From tl*is decree, the Defendant Street appealed to this Court.
    
      Gaston, for the Appellant,
    contended warmly that the Defendant Stanly had no right to an indemnity at the expense of Street — -that there was no proof of notice to the latter of Stanly's right, and that the claim not being to a specific piece of property, but being merely personal on the Defrndant Stocks, the maxim qidprior est tempore potior est jure, did not apply. He denied that the cases of Gill v. Lyon, and Clowes v, Dickinson, (l John. Chan. Sep. 447, and 5 Do. 235) were applicable, and insisted that it was a case of contribution between the Defendants, and that both should discharge the iucumbr.inre in proportion to the value of their respective purchases, fie cited 5 Vmerab. 562 — 1 Eq.ca.ab. 113 — Bacon’s Maxims, 15 — Cary's Hep. 3, Du. J 59 — Fite. JV*. fí, 235 b. — 3 Dyer 310 b & 332 a. — Herbert’s case, (3 Rep. IS o.) and Web-her v. Smith, (2 Vernon 103),
    
      
      Devereux, for the Defendant Stanly,
    
    cited the cases oí Gill v. Lyon, and Cloxves v. Dickinson, and contended that they were exactly in point. That the equity exist-jr,g ¡n faVor of the Defendant Stanly against the Defendant Stocks was specific, and bound the land — he denied the necessity of notice to Street, as lie held only an equity, and cited to this point Jones v. Zollicoffer, (JV*. V. Term Rep. 225) and insisted that the oldest equity was the best. He urged that W. C. Stanly could have mar-shalled the Plaintiff upon that part of the land purchased fay Street, fiad it continued in the possession of Stocks, and that Street could have no better title than his assignor had.
    Upon the authority of Harris v. Ingledew, (3 P. TV. 98) and Cheescborough v. Millard, (1 John. Ch. Rep. 409) he contended that the Defendant Stanly had an equity against Street, because the land purchased by the former had already paid a portion of the mortgage debt.
   Henderson, Chief-Justice.

— It is neither alleged, admitted, nor proved, that when Street purchased from Stocks, he had notice of Wright C. Stanly’s prior purchase from him. But it is insisted on behalf of Stanly, that notice is entirely unimportant; that it is so, only where one. party has the legal, and the other the equitable interest. That the doctrines founded upon it have no application where both parties have an interest of the same kind, to-wit, both legal or both equitable; in such cases priority cf acquisition is the rule by vt Inch the respective rights of conflicting claimants is determined. For this is cited the case of Jones v. Zollicoffer so often in this Court. It it true, that where two persons claim the same thing, both under a legal, or both under an equitable title, there priority of acquisition alone is regarded, and notice is unimportant. Notice is only important where one claims the legal, and the other the equitable estate. In this case, the parties do not claim the same thing; one claims one part of the íand, and the other another part. The equity of Wright C. Stanly is. that Stocks should disencumber his lands from the mortgage, and that as between him and Stocks, the whole mortgage debt should be thrown on the residue 0f the mortgage lands retained by Stocks. This equity is .Í think personal to Stocks, and is not in the nature of a lien on the lands. To affect Street with it, he must when he purchased, have liad notice of the obligation imposed on Stocks, for there was no such incumbrance on the land, as to affect it in the hands of a bona fide purchaser without notice. Had there been notice, I forbear to say what would have been its effects in this case.

But I think Stanly has another equity, which the case presents. It appears, that lie paid the purchase money of that part of the mortgaged premises purchased by him, to the mortgagee. This was a payment by the land, and as in equity the land is the debtor, it discharged the lien pro tanto, from that part which paid it, as to the holders of the other part; and gave the purchaser a right to call upon the mortgagee for all his facilities of enforcing payment out of the other lands, if he, the mortgagee, should levy the balance out of the land thus purchased. For between several purchasers of the mortgaged lands, each one has a right against the others, of compelling every part to bear its burden. Wright C. Stanly's purchase has already borne part of the burden. The Master will estimate what each part is to pay, according to these principles, taking as his guide the report made by the Master of Craven County, as to the amount due, value of each part of the mortgaged lands, and the sum paid by Wright C. Stanly.

Per Curiam.

— Decree accordingly. 
      
       It is proper to say that the case in the Court below was decided upon an admission of notice to Street- — the Reporter was Counsel in that Court, and in drafting the decree conceived, erroneously, hat the fact was of no importance, and neglected to insert it
     