
    Alexander Miner v. Cadwallader Wallace.
    Where real estate is subject to two liens, the elder a judgment and the younger a mortgage, if the judgment lies dormant five years its priority is lost and the mortgage takes the estate. *
    One in possession of land has such an interest as may he sold on execution.
    This is a bill in chancery from the county of Ross.
    The papers are voluminous, and so much only of the case is stated as is necessary to comprehend the opinion of the court.
    The bill is filed by a purchaser under a judgment against one Kerr, to quiet a title acquired by a sale, against the defendant, who claims by a purchase from the heirs of the original patentee, and by a purchase under an execution of levari facias, to sell tenements mortgaged by Kerr.
    The title of the plaintiff is as follows: -
    The land was patented to Powell’s heirs in 1818, under an entry of 1787, surveyed in 1793.
    Powell sold to Orr, who, after a sale and resale with Wilson, sold to Massie.
    Massie sold to Abrams the one hundred acres now in dispute.
    Abrams sold to Finlay.
    Finlay sold td Kerr, who held possession from 1809 until after the sale.
    On May 23, 1816, the Bank of Marietta recovered a judgment against Kerr, which was levied on this lot June 6,1816, and returned.
    *On January 8, 1829, a vendi. issued, and was returned [404 January 26, 1829, with a sale of the lot to Miner.
    In 1826, the defendant purchased the title of the heirs of Powell.
    In 1814, before the Marietta Bank judgment, Kerr mortgaged the land to the Bank of Chillicothe, nominally to secure a debt he owed the bank, but really to secure his indorsers. No act of the bank was done to accept this mortgage; but it was recorded by Kerr, July 23,1816, after the judgment lien. In 1822 a scire faciaswas issued upon it, in the name of the bank. The defendant was the purchaser at the sale under this mortgage in 1834; he has since recovered possession.
    The ease was argued at great length by Douglas and Munter for the complainant, and Leonard, for tho defendant, but as the decision of the court turns on a point not taken in argument, the discussion of counsel is omitted.
   Lane, C. J.

The rights of Wallace relate back to the record of the mortgage in July, 1816, at which time it became a specific lien on the land, all of which passed by the sale under the scire facias execution of 1834. For the objections to the mortgage, whatever might be their weight between the parties to it, do not affect the title of the purchaser under the judgment, in which all these parties acquiesced.

But this is posterior to the judgment, and the plaintiff, who is the purchaser under the judgment, holds all the judgment lien embraced at tho time of the sale.

The judgment was rendered in May, 1816. At that time Kerr held a perfect equity to the land, coupled with a lawful possession. This possession we have heretofore held is a legal estate, and may be sold on execution. The question which the parties argue, is whether the possession thus sold carries to the purchaser the equity also.

This question is one of the gravest character, and incumbered with great difficulties. We do not think the case requires its decision.

405] ^Admitting Kerr’s estate to have been a perfect legal title, binding the land at the time when rendered, the mortgage, being specific, appears to us, in the circumstances of this ease, to be the paramount lien; the sale under the scire facias to collect the mortgage under the laws then existing, transfers to the purchaser the whole interest of both mortgagor and mortgagee. The mortgagee, as between the parties to the mortgage, and in regard to all purposes contributing to the collection of his debts, is a purchaser and entitled to all his privileges of protection. The mortgagee became such a purchaser, in this case, in July, 1816, when the mortgage was recorded. The land might be then subject to the judgment lien; but when the judgment afterward became dormant, the case of Norton v. Beaver, 5 Ohio, 178, shows the lien likewise slumbers, and will not be revived at the expense of the right- of the intervening purchaser. Bill dismissed.  