
    ANNA ROGERS AND ELTON ROGERS, EXECUTORS OF, AND TRUSTEES UNDER THE WILL OF WILLIAM ROGERS, DECEASED, v. WILLIAM ROGERS, SIMEON WARRINGTON ET AL.
    1. A and B held a mortgage given to them as' trustees, on the undivided half of a mill seat. B, in his own right, held a subsequent mortgage on the same half. On proceedings for partition between the owners of the mill seat, it was ordered to be sold at auction, and was so sold by the commissioners. The order for sale and the conditions of sale were silent as to whether the property was to be sold subject to or free from encumbrance. Held, that parol proof was admissible to show that B was present at the sale, and agreed that the property should be sold free from' encumbrance, and received from the commissioners the mortgagor’s half of the proceeds of the sale, knowing that the purchaser paid the money understanding that the property was sold free from encumbrance, and that the mortgages were to be canceled.
    2. B applied a part of the money he received to the payment of his, the junior mortgage, in full, and the residue of it towards paying the mortgage to the trustees, thus leaving a balance due on that mortgage. The half of the proceeds of sale received by B was sufficient to pay the mortgage to the trustees, and part of the mortgage held by B in his own right. Held, that the mortgage to the trustees was satisfied.
    William Rogers gave a mortgage to Anna Rogers and Elton Rogers, executors of, and trustees under the will of William Rogers, deceased, dated in 1824, on the undivided half of a mill seat.; the other undivided half being owned by John Warrington. In February, 1830, the said mortgagor gave another mortgage on his undivided half to Elton Rogers, in his own right. Commissioners were appointed to divide the property between the owners, the said mortgagor, and John Warrington. The property being incapable of division, it was ordered to be sold by the commissioners at public sale, and was sold accordingly, July 24th, 1830, to Jacob Haines, for $2055, and was conveyed by the commissioners to him. In September, 1830, Haines conveyed the property (o the defendant, Simeon Warrington, for the same sum at which it was struck oif to him at the commissioners’ sale. In November, 1833, Simeon Warrington mortgaged the property to Isaac Hewlings for $1500.
    The bill charges that, notwithstanding the said commissioners’ sale, the mortgagor’s undivided half of the property remained subject to the first mortgage — the mortgage given to the complainants, the executors and trustees aforesaid ; and further charges that, on the 9th of March, 1831, Elton Rogers, as the agent of the mortgagor, and not in his own right, or as executor or trustee as aforesaid, received in behalf of the mortgagor, from the commissioners, the equal half of the proceeds of the commissioners’ sale; that Anna Rogers did not, in any way, participate in or meddle with the said receipt, but that the same was the act of Elton, acting as the agent solely on behalf of the mortgagor; and that, by the direction of the mortgagor, he, Elton, applied the said money, first to the payment of what was due to him on his, the junior mortgage, and the balance towards paying the mortgage to the complainants ; and that a balance remains due on the mortgage of the complainants.
    Simeon Warrington answers the bill. The answer states that, at the time of the commissioners’ sale, the premises were first set up subject to the mortgages, but that no bid whatever could be obtained therefor. That Elton Rogers then proposed that the premises should be sold free from the encumbrances, and declared publicly that on the payment of the money bid for the premises, he would deliver up the mortgages to be canceled. That the commissioners did thereupon, in his presence, and with his knowledge and consent, and at his request, sell the premises at public outcry, clear of all encumbrances, expressly making known, in the presence of Elton, previous to the sale, that the premises would be so sold; and that Elton was a competitor at the sale, and bid for the premises $2050. That said Haines bidding five dollars more, the premises were struck off and sold to him for $2055, clear of all encumbrances. That he, Simeon Warrington, before the delivery of the deed to Haines, agreed to take the premises and become the paymaster. That the purchase money for William Eogers’ half was given to Hulme, one of the commissioners, to be paid when the mortgages should be given up to be canceled. That the net proceeds of the commissioners’ sale amounted to $1927.32, and that, by an order of the Supreme Court, of February Term, 1831, the commissioners were directed to pay the one-half thereof to William Eogers, the mortgagor, and the other half to John Warrington, the other tenant in common. That on the 9th of March, 1831, the one-half so directed to be paid to William Eogers, was, by the commissioner Hulme, paid to Elton Eogers, That the mortgages were then in the hands of Wills, another of the commissioners, and that the money was so paid, on the express understanding that the mortgages had been delivered up by Elton to the commissioners, to be canceled.
    He admits that the receipt given by Elton to the commissioners for the said money, was signed by Elton as agent for William Eogers, the mortgagor, the said money having been ordered by the court to be paid to the said William, and says that Elton acted as the agent of William, and had the management of his business affairs.
    The testimony in the cause is as follows:
    George Hulme, sworn for defendant, says he was one of the said commissioners; Daniel Wills and Joseph Saunders were the other commissioners; the commissioners reported that the property could not be divided, and it was ordered to be sold ; it was sold on the premises, July 24th, 1830; Exhibit No. 1 on the part of the defendant, is one of the advertisements of sale; Saunders, one of the commissioners, was absent; the property was first put up for sale, subject to the encumbrances; the crier dwelt on it some time, but could not get one bid — not. a cent; the- parties who held the encumbrances, he believes, were present; he knew Elton Eogers ; the others he did not know j they got together; they informed Wills and him that they had concluded to sell it clear of encumbrances; proclamation was then made that the property would be sold clear of encumbrances; it was made public, to let everybody know that was there; it was set up again, and bid for; when something like two thousand dollars was bid, he saw that the thing seemed to be like winding up; he then took Elton aside, and said to him, “Now that we are selling the property clear of encumbrances, you must bid till you are satisfied;” he returned to the crier, and did bid ; after that, Jacob Haines bid; it dwelt on his bid some time; we could get no further bid, though it was rather low; the commissioners wanted to get more; they then consulted Elton Rogers and John Warrington, as to whether it should then be cried off, or the sale adjourned ; they did not get the answer direct from them; Warrington said he would leave it all to Elton; he said this more than onee; it was then cried off; it was agreed by both of them, as he understood, that it should be cried off; he was express in it, because he did not want it cried off' unless they were both satisfied ; it was distinctly understood that it was to be sold clear of all encumbrances; they could not get a bid until it was so; it was struck off to Jacob Haines for two thousand and fifty-five dollars. Exhibit No. 2 on the part of the defendant, being shown to witness, he says it is the deed from the commissioners to Haines; he cannot be positive when or where the deed to Haines was delivered; the whole of the purchase money was placed in his hands; he cannot tell how they got together, but the parties were at Mr. Wills’ office, and word was sent to the witness to come up there; witness went up therewith the money in his pocket; thinks Warrington was there; he knows Elton Rogers was there, and some other persons concerned in the business, bnt who, he cannot say; when he went into the office, he asked Mr. Wills, his colleague, who was the scrivener in all this business, if all the papers relating to the encumbrances were there; he said yes — holding up the papers in each hand — here they all are; he, witness, did not read the papers; witness then considered it all straight, and pulled out the money and counted it down to Mr. Wills; Elton Rogers was present; as he got near the door, about leaving the office, Mr. Wills or Elton, one of them — witness thinks it was Wills — said that Elton wanted the mortgages for Mr. Brown, the surrogate, to make a calculation of the loss that would be on them; witness believes he signified that he had no objection to Elton’s having them for that purpose; witness left them with Mr. Wills; he did not know they were to go out of Wills’ hands; he learned after-wards, from Wills, that the papers were in Brown’s hands; witness went, two or three times', to Brown’s for the mortgages, by himself; he felt uneasy about the situation of things; Brown did not give them to him; witness urged it, and claimed the papers, as one of the commissioners, and insisted on having them, as the commissioners’ papers, and that no one else had any right to them; when Brown found that witness was determined to have them, he said he could not give them to witness unless the parties were all present; Wills, Elton, and he got together, at Brown’s office; both Wills and witness claimed the papers as theirs; Elton did not agree to let them have them; he wanted, as witness understood, to collect the balance on them ; he left, and did not get the papers; the claim of Elton struck witness as very wrong, because it was so expressly understood, at the sale, that the property was sold clear of encumbrance; witness paid over the money, on the express understanding that the mortgages were to be given up; he would not have paid over a cent, if they had not been to be given up; the purchase money was placed in his hands on that understanding ; he understood Elton Rogers and John Warrington were the parties interested; Elton represented William Rogers, and signed his name as agent, witness thinks, in the receipt he gave the commissioners.
    Being cross-examined, this witness says — Exhibit G on the part of the complainants, is the receipt spoken of; Elton acted, throughout, as agent for William ; Exhibit P on the part of the complainants, contains the conditions of sale; that is what we sold by; the bonds and mortgages were never given up to him; witness paid the money to Wills, and he took the said receipt, marked G; witness did not get the receipt at the time; Elton, at the sale, agreed that the mortgages should be given up to the commissioners; witness does not know that this promise was made in writing; Elton agreed to give them up, on condition that William’s share of the purchase money, whatever the property brought, should be paid over to him, Elton; witness always understood him to be acting as the agent of 'William; neither of the parties required an adjournment of the sale; witness asked them both; the commissioners sold the property without encumbrance, by the authority of the parties, Elton acting as agent of William ; the encumbrances were not given up to witness, but when he paid the money to Wills he understood that the mortgages had been given up to Wills, as one of the commissioners, before witness paid over the money to him; he understood this from Wills’ answer to his inquiry, in Elton’s presence; witness paid the whole of the money to Wills.
    Re-examined on the part of defendant, he says — he does not think he was aware, at the sale, who held the encumbrance.
    Jacob Haines and Samuel Wilkins, sworn on the part of the defendant, fully confirm the statements of Mr. Hulme.
    Daniel Wills, called by complainants, on his cross-examination, confirms the same facts. He was not questioned on this subject on the part of the complainants.
    Joshua Matlock, called on the part of the complainants, swears he was present at the sale; the conditions of sale were read by Mr. Wills; they were written; near the end of the sale he found Elton was bidding, and some others; Haines asked Wills about the encumbrances; Wills then asked Elton concerning it; Elton said that when he got his money, for all he knew, the property would be clear; this was while the bidding was going on; he did not hear Elton agree to give up his claim on the property without receiving his money; he went with Elton to the sale and returned witli him; on their way home Haines stopped them and asked Elton what was the amount of the mortgages on the property; Elton told him; Haines said he had money enough coming in, but if he should not happen to get it all by the time specified in the conditions for payment, if he, Elton, would wait until fall or spring, he would pay him all up; Elton replied very well, or something to that import; he, witness, is a brother-in-law of Elton, and is a little hard of hearing; Haines did not in that conversation mention the amount he would pay.
    John Warrington, called for complainants, says — Stacy Martin, before the sale, gave him a note for one hundred dollars, conditionally, that if his father-in-law, Jacob Haines, bought the mill, and he, Stacy, got there to live, he would pay it; the one-half' was sold at $1200, but he gave way and let it go for less; he gave the note back after the sale; he did not bid at the sale; he did not consider himself bound not to bid ; Jacob Haines did not know about the note, but Elton Rogers did; he gave up the note without any consideration, after Haines had agreed to let Simeon have the mill; Stacy gave me the note because his father-in-law was a little afraid of giving him the price, and he was willing to help out a little,, rather than not have the mill; Haines did not give, witness thinks, quite as much as he, witness, expected ; he had told Haines, he thinks, that he was willing to take $1200 ; witness is the father of Simeon; Simeon borrowed the money to pay for the property; witness was his security on the bond to Dr. Spencer, of whom it was borrowed; witness paid the money to Mr. Hulme for Simeon; he paid it to Mr. Hulme, to pay over to Elton, when the commissioners got the mortgages into their own hands, and not before,- and he, Mr. Hulme, promised to do it; at the commissioners’ sale, after they found the property would not sell with the encumbrances on, they put it up free of encumbrances.
    Nathan Warrington, called for complainants, says he was at the sale; there were written conditions ; Mr. Wills read the conditions, and then made proclamation that the premises were to be sold free of encumbrances — all encumbrances to be given up; Jacob Haines then asked if Elton said so; Elton then said, “ Be sure, the mortgages would be given up when, the money was paid ; ” Haines and Elton then bid it up to $2050; then they stopped a while, and Wills, Hulun: and Elton consulted together, and after that Wills said they would sell the property then ; Haines then bid five dollars, and it was knocked off to him ; witness did not know, at the time, of any arrangement between John Warrington and Stacy Martin about a note; he knew there was an arrangement about the sale of the property, between Jacob Haines and John Warrington; Haines was to make up to John $1200 for his half, let the property bring what it might; witness was present when Haines stopped Elton Rogers and Joshua Matlock, after the sale; Haines told Elton, he thinks, that he should not be able to pay all at the time fixed for delivering the deed, but if he would wait a little he thought he should be able to pay the remainder ; Haines asked Elton the amount of the mortgages, and Elton told him, but the amount witness does not recollect; he cannot say he understood Haines to say he would pay off the whole of the mortgages. Witness knew of the arrangement before mentioned, between Haines and John Warrington, before the commissioners’ sale, and mentioned it to Elton Rogers, that he might have a chance to take care of himself. He mentioned it to Elton on the day of the sale, before the sale took place.
    The cause was heard on the pleadings and proofs.
    
      G. D. Wall, for the complainants.
    
      H. W. Green, for the defendants.
   The Chancellor.

This case, upon the testimony, is clearly with the defendants. The amount bid, taken in connection with the fact that the property was first set up subject to the mortgages and no bid could be obtained, shows that the sale made was not a sale subject to the encumbrances. The amount „ bid, and at which the property was struck off, was the sum which the purchaser agreed to pay for the whole property. There is nothing in the conditions of sale opposed to this. These conditions, as well as the order for the sale, are silent as to whether the property was to be sold subject to or free from encumbrance. It was said the commissioners could not sell free of encumbrance. The mortgagee could agree that the sale should be so made, and that he would give up the mortgage on receiving the purchase money. It was objected, that the conditions of sale were written, and that parol evidence to show that the sale was made clear of encumbrances was inadrnissible. The conditions were silent as to how the property was to be sold, in this respect. The parol evidence, therefore, does not contradict the written conditions; and it may be said, further, that it does not add to the conditions. They provide generally for the sale of the property ; and the pre-

sumption arising from the conditions would be, that the property, and not merely an equity of redemption, was to be sold.

It was said that Elton Rogers, being only one of two co-ex - ecutors and trustees, could not make a valid agreement that the property should be sold clear of the first mortgage, that being given to both executors and trustees. He could agree for himself, and in reference to his own mortgage, which was the junior mortgage; and the property brought, and it was well understood at and before the sale, that it would bring more than enough to satisfy the first mortgage. It was, in substance and effect, an agreement by him that if the proceeds of the sale fell short of paying his mortgage, after satisfying the prior one, he would immediately give up his mortgage on receiving the residue after satisfying the prior mortgage.

It was said that the commissioners’ deed only conveyed the right and interest of the mortgagor. This, I apprehend, is a mistake. The deed is in the usual form. It conveys the property, describing it, together with all, &c., and all the right, title and interest, &c. The whole property, both halves, one-half not being at all encumbered, was conveyed by the same deed, and by the same language. No distinction or difference of language was used in respect to the different halves.

The case is the same as if the whole property was subject to one mortgage only, and on a proposed sale of the property at auction, it was found that no one was willing to bid the amount' of the mortgage. It is clear that the mortgagor could not sell without the mortgagee’s consent; but the mortgagee may consent that it be sold for what it will bring, and that if it sell for less than the amount due on the mortgage, he will nevertheless receive the amount bid and cancel the mortgage.

But, it is asked, can this be done without writing? If the sale is actually, made on such an agreement without writing, and the sum bid is bid on these terms, though it may be that the mortgagee might refuse to receive the money and give up his mortgage, yet, if he receives the purchase money, knowing that the purchaser pays it as for a clear title, he cannot be permitted afterwards to set up his mortgage as a lien. The statute of frauds will not protect him in such a transaction.

There is nothing in the terms of the written receipt he gave that helps him. On the contrary, its operation is against him. It says, Received from the commissioners appointed to make sale of certain real estate held by William Rogers and John Warrington, as tenants in common, 963 dollars and 66 cents, being the equal half of the sales of said real estate, after deducting thereout the taxed bill of costs, which said sum was, by said court, directed to be paid to William Rogers, to defray certain mortgages on the premisesand he signs it as the agent of William Rogers.

Now, if the property was sold subject to the encumbrances, the proceeds of the sale would not go to defray the mortgages. If that had been the case, the property in the hands of the purchaser would have remained liable for the amount of all the mortgages, and the proceeds of the sale would have been payable, without any condition or qualification, to the owner of the property.

The counsel for the complainants would have us understand or infer, from the case as presented by the proofs, that the sale must have been made in this wise: the property to be sold to the highest bidder; the amount bid to be applied towards paying the mortgages; and if it be not sufficient, then the property in the hands of the purchaser to be liable for the balance.

This would be saying to the bidders, the property will be sold to the highest bidder, but it cannot be sold unless the bid is equal to the amount of the mortgages. If that had been the understanding, the first thing to have been done would have been to ascertain the precise amount due on the mortgages ; and after this was done, the first bid (if anyone was willing to make it) would have been the amount of the mortgages, for what propriety would there have been in beginning at a lower bid. But, it is proved by every one of the witnesses present, that an effort was made to sell subject to the mortgages, and not a bid could be had.

Again, as to the idea that his agreement was not binding on iris co-trustee. I have said before, that the mortgage held by the trustees was the first mortgage, and there was enough to pay it. There is something extraordinary in Elton’s application of the money. Why did he not apply the proceeds first to the payment of the first mortgage ? He was the active trustee, and held both the mortgages. The question must be considered here as if the first mortgage had been wholly paid off, and the deficit was claimed on his own mortgage, against and in opposition to his own agreement at the sale. Fairness and ingenuousness required him to pay the first mortgage, and to meet the question on his own mortgage. It is the same case as if he was the only mortgagee. And in this view, the fact that he bid himself at the sale, is strong, perhaps conclusive. He bid $2050. Did he mean to pay that sum to the mortgagor ? Did he bid that sum over and above the mortgage ?

It was objected that there was a fraud practiced on Elton at the sale j that there was an arrangement between Haines, the purchaser at the sale, and the owner of the other half, that Haines was to make up to him $1200 for his half, let the property bring what it might at the sale. More than one answer may be given to this. Elton knew of that arrangement at the sale, and before the property was sold. This is distinctly proved by Nathan Warrington, who swears he told Elton of this arrangement, that he might have a chance to take care of himself. And yet he suffers the sale to proceed free of encumbrance, and receives of the proceeds of the sale the half belonging to the mortgagor, for whom he was acting as agent.

It is evident he understood that the money paid was paid as in full for the property, free from encumbrance. It was so paid. This is distinctly proved. If he received it knowing the purchaser paid it in that way, this court cannot give effect to any mental reservation of his at the time; that after getting the money, he would so arrange it as to throw the deficit on the first mortgage, and collect it on that. If he should think himself justified in so doing, under an idea that a fraudulent arrangement had been made between Warrington and Haines as to the other half, the court differs. This-idea of counter-cheating cannot be entertained here.

It was said that the property should be sold again, under a decree, of this court, and if it brings more than it did before, the surplus should be applied to the complainant’s mortgage. This would not relieve us from the difficulty. A new mortgage has been given by the grantee of the purchaser at the commissionors’ sale, for $1500 dollars; and there is no probability that the property would bring enough to satisfy that, after paying the two mortgages in full. It is better to meet the question here.

The fact that eight years have been permittee! by the complainants to elapse, and that in the meantime a mortgage has been given by the grantee of the purchaser at the commissioners’ sale, is entitled to no small influence in the case, if it was doubtful without it.

The complainants’ bill will be ordered to be dismissed.

Order accordingly.  