
    Jonathan Clark versus Nathaniel Austin.
    After a creditor had attached an equity of redemption, the debtor made another mortgage ; after which all his interest in the land was attached by another creditor. The equity attached by the first creditor was thén sold on his execution, which was satisfied by a part of the proceeds, and before the officer had paid over the surplus the second creditor’s execution was put into his hands. It was held, that he ought to pay over the surplus to the second mortgagee, and that the second creditor’s course should be to levy on the right of redeeming the second mortgage.
    This was an action on the case against the defendant as sheriff, for an alleged default of Joseph Hunnewell, one of his deputies. A verdict was taken for the plaintiff, subject to the opinion of the Court.
    In 1812 John Hardy conveyed certain land to the State Bank in mortgage. On the 1st of May, 1820, John Gardner attached the equity of redemption. On the 27th Hardy mortgaged the same land to Thomas Clark. On the 30th of January, 1821, William Foster attached all Hardy’s interest in the land, and afterwards on the same day the plaintiff caused a like attachment to be made by Joseph Parker, another deputy of the defendant.
    All these attaching creditors recovered judgment against Hardy, and Gardner delivered his execution to Hunnewell within thirty days after his judgment, by force of which Hunnewell seized the right of redemption and sold it on the 28th of March, 1821, for 700 dollars, to Thomas Clark, and immediately paid to Gardner the amount due on his execution. After the sale, and before Hunnewell had paid over the balance of the proceeds, the executions of Foster and of the plaintiff were delivered to him, with directions to satisfy them out of the proceeds, and with information that Foster’s attachment was prior to the plaintiff’s. Hunnewell however returned both executions in no part satisfied, and afterwards ir October 1821, with the consent of Hardy, he paid over the balance mentioned, to Thomas Clark. After these returns, but at what particular time it did not appear, the debt due to Foster was discharged by Hardy.
    At the time of the sale the amount due on the mortgage to the bank was 474 dollars, 75 cents — on Gardner’s execution with costs of levying, 265 dollars — on the mortgage to Clark, 525 dollars — and on Foster’s execution, 299 dollars, 71 cents ; — making in the whole 1564 dollars, 46 cents. The whole value of the estate, if sold on the terms that the purchaser should pay part of the purchase money in discharge of the debt due to the bank and the residue to the officer, was 1556 dollars, 25 cents. The amount due on the plaintiff’s execution was 102 dollars, 48 cents.
    If on these facts the plaintiff was not entitled to recover, he was to be nonsuited.
    
      Stearns and Locke, for the plaintiff,
    referred to St. 1798, c. 77, § 3, 4, which provides, that an equity of redemption may be attached on mesne process and taken and sold on execution, and that the officer, after satisfying the execution, shall return the surplus money, if any, to the debtor; and also to St. 1804, c. 83, § 6, which provides, that whenever an officer shall have in his hands any money arising from the sale of any equity of redemption or personal property, more than sufficient to satisfy the execution on which it was taken and sold, he shall apply the same surplus money to the payment of any other execution against the same debtor, which may be delivered to him before he shall have paid over such surplus money. They contended that an equity of redemption was a single thing; so that if it were attached on mesne process and afterwards sold on execution, this was an entire disposition of it, which would supersede any incumbrance made on it by deed after the attachment, and the officer, after satisfying the execution, must, according to the peremptory direction of the first mentioned statute, pay over the surplus to the debtor, not to his assignee, or according to the •ther statute, must apply it to other executions. The statites intend that the officer shall be relieved from any doubt as to what he shall do with the surplus, and he is to take notice of nothing but attachments and executions. He is not authorized to inquire into any conveyance made by the debtor after the attachment. Thomas Clark, in attempting to secure his debt, was unwise in taking a mortgage instead of making an attachmerAs the officer returned the execution in favor of Foster unsatisfied, he had a balance in his hands more than sufficient to pay the plaintiff’s execution.
    
      Hoar and Tufts, for the defendant,
    cited Bigelow v. Willson, 1 Pick. 485.
   Wilde J.,

in giving the opinion of the Court, said the second mortgage operated as an assignment of the equity of redemption as to every thing except the debt due to Gardner. The principle of property attached being in the custody of the law, applies to goods only, and not to real estate. If the officer should enter on real estate which he has attached, ejectment would lie against him. The equity of redeeming the first mortgage in this case was the property of the debtor, and was not in the custody of the law, and he had a right to sell it, subject only to the lien created by Gardner’s attachment. This was settled in the case of Bigelow v. Willson.

The question then is, whether the officer, after satisfying Gardner’s execution, was bound to pay over the surplus to the other execution creditors of Hardy, or to the second mortgagee. It would have been competent to the legislature to have restrained the debtor from making an assignment of an equity of redemption after it has been attached ; but there is no such restraining clause in the statutes in question, and we cannot construe them as making an assignment of this kind invalid. This being the case, we think the legislature could not say that the property of one man should go to pay the debts of another. At any rate, such a provision is not to be implied. The statute of 1798, c. 77, directs that the surplus money remaining in the hands of an officer after satisfaction of an execution, shall be paid over to' the debtor, without saying, “or to his assignee and it is contended that it must therefore be paid over to the debtor himself. If the debtor should, die however, it should undoubtedly be paid over to his executor or administrator, and yet that is not expressed in the statute. From the nature of the thing, where a right goes with land, the assignee of the land may enforce such right. This part of the case is attended with no difficulty, for the surplus will go to the assignee, whether, he is an executor or administrator, or one created by deed. But a difficulty arises out of the subsequent statute, which provides, that the officer shall apply the surplus to the discharge of other executions against the debtor. It is argued that this is a positive pro. vision which must be pursued, however equitable it might be for the officer to take a different course. But it is evident the legislature intended to provide for cases only-where the equity sold belonged to the debtor. It could not be intended that where he had parted with his property, it should still go to pay his debts. On every principle the surplus here was rightfully paid over to the assignee of the equity of redemption. It is said, however, that the value of the land exceeded the amount of the former incumbrances and of the second mortgage. We cannot consider that in the present case. This is an action brought on account of an officer’s not doing his duty in paying over the surplus proceeds of the sale of an equity of redemption to the assignee of the equity. The only way for the plaintiff to secure his debt, would have been to cause the equity of redeeming the second mortgage to he sold on execution. It was not the officer’s fault that this was not done.

Verdict set aside and plaintiff nonsuit. 
      
       See also Reed v. Bigelow 5 Pick. 281.
     