
    William H. Brisbane vs. James M. Stoughton and another.
    A power of attorney executed to a third person, authorizing him to sell mortgaged premises on default of payment, for the benefit of the mortgagee, is a valid power for such purpose 5 and after a bona fide sale made under the power, proper notice having been given by advertisement, no equity of redemption remains in the mortgagor, or those claiming under him.
    Such sale will be binding, though made during the pendency ol a bill in chancery to foreclose the mortgage.
    This is a Bill in Chancery reserved in Hamilton County.
    The original bill in the case was filed August 16, 1842, in the Superior Court of Cincinnati, against James M. Stoughton, a child then about nine years of age.
    The bill set forth certain proceedings by Davis B. Lawler, to foreclose a mortgage upon a lot in Cincinnati, of which Stoughton died seized, a few months before the commencement of them; a sale under the decree obtained; a deed to Graham; a conveyance by him to the complainant and the omission to make young Stoughton a party defendant, in consequence which his interest did not pass to the. purchaser. The bill averred that James M. Stoughton was entitled to redeem, and prayed that he might be compelled to do so by a given time by paying the mortgage debt and interest, or be forever barred.
    To this bill the defendant Stoughton, by his guardian ad litem, (his mother) demurred ; but his demurrer was overruled, December 7, 1842, and leave given to answer.
    Stoughton then answered, insisting that inasmuch as he was not made a party to the proceedings in chancery under which the complainant acquired title, he could not be affected by them; that under the proceedings only two thirds of the lot were sold, for which no more than a fair price was paid; that the price so paid discharged the mortgage debt, which, once extinguished, could not be revived; and consequently, there being no mortgage debt, nor any mortgagee, he was not bound to redeem, but was entitled to hold one third of the lot by descent free from the incumbrance of the mortgáge.
    No replication was filed, but the case went to hearing on bill and answer.
    On hearing, the Court was of opinion that the complainant was entitled to call on the defendant to redeem, by paying the mortgage debt and interest, and decreed accordingly.
    From this decree the defendant appealed to the Supreme Court, where the cause came on for hearing at the April Term, 1845, and a decree was entered affirming the right of the complainant to call on the defendant to redeem ; but directing an account to be taken to ascertain the amount of the mortgage debt and interest, after deducting rents and profits, and remanding the case to the Superior Court of Cincinnati for execution of the decree, with leave to make George Graham, the grantor of the complainant, and his predecessor in the possession of the property, a party, in order to ascertain the amount of rents and profits received during his possession.
    
      On the 16th October, 1845, the defendant filed his petition in the Superior Court, making Graham a party and praying an account.
    On the 4th November, 1845, Graham filed his answer to this bill, admitting his possession, but setting up that he claimed under a sale by virtue of a power of attorney, brought into Court, to satisfy the mortgage debt; stating further that he was advised to deny the right of Stoughton to redeem, but referring that matter to the Court; that, doubts being suggested as to his title acquired under this sale, proceedings were instituted in the usual way, to foreclose the mortgage; that the defendant, Stoughton, was not made a party, through mistake^; that a decree was had against the two other heirs, and defendant Graham became the purchaser under it.
    This answer was accompanied by a cross-bill, setting up that Graham was owner of divers claims against the estate of J. M. Stoughton, deceased, and insisting that, if the,Court should be of opinion that the defendant Stoughton was entitled to redeem, the equity of redemption should be sold for the satisfaction of those claims. To this cross-bill the administrators of J. M. Stoughton, deceased, and James M. Stoughton, the son, were made parties.
    To this answer there was a general replication, and a general demurrer was filed to the cross-bill.
    At the July Term, 1847, the Superior Court sustained the demurrer and dismissed the cross-bill, at Graham’s costs. In the same decree the Court ordered a reference to the master, to state an account according to the principles of the decree of the Supreme Court. From this decree of the Superior Court there was no appeal..
    An account was accordingly taken, and filed January 24, 1848, and exceptions were taken.
    The cause came on for further hearing on the report and exceptions at the January Term, 1848, of the Superior Court; and a final decree was entered overruling the exceptions; allowing the defendant, Stoughton, to redeem on payment of a certain sum, being the mortgage debt, and interest, with certain deductions; perpetually enjoining Graham from setting up any claim upon the premises ; barring, in the event of tion, within six months, all Stoughton’s equity of redemption, and ordering payment of costs by complainant.
    The complainant, Brisbane, alone appealed from this decree.
    The mortgage was given by David O’Brien to Matthew Lawler, to secure the payment of $3000, and the power of attorney referred to in the answer of Graham, was executed by O’Brien on the same day to Davis B. Lawler, and authorized him to sell the mortgaged premises in the event of non-payment of the mortgage debt, at public auction, after giving notice, &c. The premises were afterwards sold by O’Brien to Stoughton, deceased.
    The mortgage debt not being paid,- after extending the time of payment, Davis B. Lawler, in pursuance of the power, sold the mortgaged premises, during the pendency of proceedings in chancery to foreclose the mortgage.
    The power of attorney referred to in the answer of Graham, was executed on the same day with the mortgage and authorized Lawler, in the event of the non-payment of the mortgage debt, to sell the premises at auction after giving notice, &c.; and under that power the premises were sold to Graham, and while proceedings were pending in chancery to foreclose the mortgage.
    
      Henry Starr and John Jolliffe, for Complainant.
    
      Chase &f Ball, for Defendants.
    Several questions arise for consideration:
    I. What and who are now before this Court ?
    1. I understand the rule to be that where one only of several parties appeals, only so much of the case is brought up, as is necessarily connected with his interests, and the questions made by him.
    
    
      Now the matters set up in the cross-bill of Graham are in no wise connected with the question as to the right or duty of redemption, as between Brisbane and Stoughton. Besides, these matters were considered and disposed of by the Superior Court at the July Term, 1847, when Graham’s cross-bill was dismissed at his costs; which decree was final as to those matters, and from which there was no appeal. It seems quite clear, ■therefore, that those matters, which are not touched by the decree appealed from, but had been before finally disposed of, cannot now be brought into discussion. It will be remembered that Brisbane alone appealed from the last decree, Graham did not.
    . 2. Nor, as it seems to us, can the other matters set up by Graham to defeat the equity of redemption, be properly brought before this Court, at this time. Brisbane filed his bill, calling on Stoughton to redeem or be foreclosed. Stoughton answered asserting his absolute right in the fee. The Court held that he was bound to redeem by paying the mortgage debt, with interest. This debt had been reduced, by rents and profits received or enjoyed by Graham, under whom Brisbane claimed.
   Avert, J.

It is claimed in the present case, that the defendant, Stoughton, has a right to redeem the premises in controversy ; and it is further claimed, that although in some former stage of these proceedings that right might have been resisted, yet it is now too late, because, it is said, no question touching the right to redeem is before the-Court on this appeal.

The case is in this Court, by appeal from a decree of the Superior Court of Cincinnati. The Court therein affirms that the sale made by Davis B. Lawler,- under the power of attorney, as set forth in the answer of George Graham to the cross bill of James M. Stoughton, did not divest Stoughton of his equity of redemption, but that he was entitled to redeem, on paying the mortgage debt; and accordingly, the Court decreed that Stoughton ' should be allowed to redeem the premises, and that Graham and his assignees be forever barred from setting up an f claim to them. Complainant, Brisbane, takes the appeal. Now by the express terms of the decree., the right to redeem the ises was settled in favor of the defendant, Sotughton; and to the prejudice, as the whole case showed, of the complainant. The complainant derives title through Graham, and if Graham took the premises free from Stoughton’s equity of redemption, then such equity ought not to be set up and sustained against the complainant. If the Superior Court had power to decree a right or title in the defendant, an appeal would seem but a barren privilege, if the decree so rendered could not be changed or reversed in the appellate Court. To take this appeal, was no doubt the right of this complainant; and he thereby, in the opinion of the Court, brought up the whole case, or at least so much as should be deemed necessary to secure him a hearing upon any decree rendered in the case. '

Considering the case then as properly appealed, the question is to be decided by the Court, whether the power of sale executed by O’Brien, the mortgagor, to Davis B. Lawler, be a valid power; and if so, whether the subsequent sale and conveyance by Lawler, to Graham, were in accordance with that power, and were otherwise unobjectionable, so as to pass the title in fee to Graham.

- The mortgage to Matthew Lawler, and the power to Davis B. Lawler, were executed on the same day; and were, as is obvious from the instruments themselves, intended to secure the sum of $3000, and provide for its prompt payment when due. There can be no dispute, but that this power uses language entirely suited to the purpose for which it appears to have been designed. The words are: “ and in case default shall be made in the payment of the said sum of three thousand dollars, on the said 29th day of May, 1833, I do hereby authorize and empower the said Davis B. Lawler, his executors and administrators, absolutely to sell, dispose of and convey, at public auction, the same hereditaments and premises, to the best bidder, and make and execute to the purchaser thereof a full and:'effectual deed of conveyance of the same, and to rece*ve ^ie amount °f such purchase money.” Here is the con-of the parties, fully, distinctly and deliberately authorizing a sale of the premises, on the happening of a certain event. There is no pretence that any fraud, or imposition, was practiced by or upon the person authorizing the sale. The power, both in its form and the mode of its execution, under our statute, is sufficient to pass the title to real estate. What reason, then, can be given for pronouncing a bona fide sale under this power, a nullity ? With respect to the common mortgage, it is true, the doctrine has been established that the mortgagor has in equity a right to redeem. But it is a principle perhaps not less universally recognized, that after an actual and fair sale, under a trust deed, or mortgage deed with a power to sell, there is no equity of redemption remaining. The cases noticed, show the existence of this principle in England, and in many of the States. But an authority supposed to be directly in point, is found in 10 Ohio Rep. 208. The power in that case, is not more clear and explicit than the one now relied upon. Nothing in that case case shows that the power then before the Court, was not a power given to sell mortgaged premises.

But if the power of attorney was at the time of its execution a valid authority to sell and convey, what has since occurred te defeat or destroy it ? The bare delay to proceed for a year, could have no effect to impair any right once secured, nor can we perceive how an agreement, even upon a consideration, to delay for a given time, can be construed into an obligation to delay indefinitely,.or for any time longer then that agreed upon, or in any way into a waiver of the power. There is no release of the power, nothing, from all that appears, that was ever designed by the parties to operate as a release. On the contrary, action under the power was only suspended for a certain fixed period. The time agreed upon for delay passed, the money was still left unpaid, and then, after advertising the time and place of sale, as was necessary and proper under the power, the premises were at length sold to the highest bidder. Nothing appears in any of the proceedings, as5-they are viewed by the Court, to impair the title of Graham under his deed executed by virtue of this power. If the power was sufficient to ize Davis B. Lawler to sell, and the measures adopted were in pursuance of the power, and without fraud, the pendency of the bill to foreclose the mortgage could not render the sale invalid. The proceedings in Chancery were not contemplated by the contract of the parties, nor in any wise necessary. They might have been discontinued after the sale, instead of being carried on to a final decree. As such proceedings do not of themselves constitute any release, they can be objectionable only as they may have an effect upon the sale, or show fraud in the parties. Nothing of this kind appears in proof, and we have not been able to see any thing that should give the defendant, Stoughton, the right of redemption, which is claimed for him. He will therefore not be allowed to set up such right in the case.

Decree accordingly.  