
    Henrietta Frische v. Henry Kramer’s Lessee.
    A purchaser at sheriff’s sale, under an order for the sale of mortgaged premises, is invested with the interests of the mortgagee in the land ; and, so far as the land is concerned, is subrogated to all the rights of the mortgagee.
    As between mortgagor and mortgagee, and those claiming under them, after condition broken the estate becomes absolute in the mortgagee, subject, however, to be redeemed at any time before foreclosure.
    A purchaser from the mortgagor, whose purchase was made subsequent to the date of the mortgage, can not maintain ejectment against the purchaser at sheriff’s sale, although such subsequent purchaser was not made a party to the proceedings in chancery. But he may have a bill to redeem.
    This is a writ of error, directed to the superior court of Cincinnati.
    *Tho original action was ejectment for the premises in controversy, commenced by the defendant in error in the superior court of Cincinnati. On trial to a jury, a verdict was returned for tho plaintiff below. Upon the return of the verdict, the defendant below moved for a new trial, which was overruled by the court, and judgment entered for the then plaintiff.
    To reverse this judgment, this writ of error is prosecuted.
    On the trial of the case, a bill of exceptions was allowed by the court, which exhibits, in substance, the following facts :
    On November 22, 1841, the former owner of the premises in controversy (John B. Germain and wife), conveyed the same by mortgage in feo, duly executed and acknowledged, to one Anthony Mousch, conditioned for the payment of $300, and recorded on November 26, 1841. This mortgage was assigned by Mousch to Franz Ratterman, and on October 25, 1842, after forfeiture, a bill for a foreclosure and sale was filed by Ratterman, in the superior court of Cincinnati, against John B. Germain and wife, Anthony Mousch, and Oliver Gray, and that, on January 26,1843, the court, after finding the sum of $330 to be due from said Germain, directed a decree to be entered for the sale of said lot. By virtue of said decree an order of sale was issued, returnable to July term, 1843, and a return thereon, of sale to David Boring, for $400, which sale was duly confirmed at the term of October, 1843, and a deed ordered and duly executed to Boring, who, on November 21, 1843, duly conveyed the lot to John Frische (since dead), the husband of tho tenant in possession. The defendant in error claims, under a deed from John B. Germain to Michael Germain, dated January 14, 1842, and recorded' on February 11, 1842, and from Michael Germain by derivative conveyances.
    On the trial of the cause in the court below, tho *counsel for the plaintiff in error asked the court to instruct the jury:
    1. That as between the mortgagor and mortgagee and their assigns, the fee of the estate passed to the mortgagee at the time of the execution of the mortgage.
    2. That the grantee of Boring (the purchaser) is the' legal assignee of the mortgage, and can use it as a muniment of title.
    3. That after the condition broken, and the consequent forfeiture of a mortgage, the mortgagor or his grantees can not maintain an action of ejectment against the mortgagee and his assigns in possession, until payment of the mortgage debt.
    4. That if the deed under which the plaintiff claims title, was dated prior to filing the bill to foreclose, and subsequent to the registry of the mortgage, the lessor can only have an equitable interest, which can not be maintained in an action of ejectment.
    All of which instructions the court refused to give, but charged tho jury, “that as against tho defendant, in the court below, tho lessor of the plaintiff had the' legal estate,” and withdrew from the jury all the papers connected with the proceedings in chancery, offered as aforesaid, and all the deeds predicated thereon, and generally all the testimony offered by the defendant.
    Tho errors assigned are:
    1. That the court erred in refusing to instruct the jury, as requested by the plaintiff in error.
    
      2. That the court orrecl in withdrawing the testimony from jury.
    3. The general error.
    E. S. Haines, for plaintiff in error:
    In considering this question, we must recollect that we are in a court of law, investigating a legal, not an equitable right; and that, in remote times, if the mortgagor once *suffered tho condition to be broken, his estate was gone, and there could be no redemption. No principle of law is more firmly established than that, as between mortgagor and mortgagee, and those holding under them, the legal estate and right of possession are in the mortgagee and his assigns. It will probably be admitted by the counsel for tho defendant in error, that if the assignee, Rattorman, had purchased and taken possession of the lot in controversy, he could be evicted. But, as this plain proposition may be denied, I will refer to a few loading cases upon this point
    In the language of Judge Wilde, 17 Mass. 421: “ Tho ancient doctrine of tho common law, in respect to mortgages, is plain and well understood. By a conveyance by way of mortgage in foe, all the mortgagor’s title passes to the mortgagee, subject, however, to be defeated by the performance of the condition. But if tho condition be not strictly performed by the mortgagor, the estato of the mortgagee becomes absolute—no right remaining to tho mortgagor afterward to redeem.” 1 South. (N. J.) 268. So in 2 Black. Com. 158 : “ In case of failure to perform the condition, the mortgagee may enter and take possession, without possibility at law of being afterward evicted by the mortgagor.” 1 Powell on Morg. 4, 5. And this was tho law until courts of equity interfered,. and tho debtor was declared to possess what was significantly termed an “equity of redemption,” or a right to redeem the estate within a reasonable period, upon the payment of tho debt and all equitable charges, such as taxes, assessments, repairs, etc. Holcombe’s Eq. 186 ; 1 Powell, 4, n. a; 17 Mass. 422 ; 10 Paige, 70; 2 Ed w. G34. A deed of mortgage, at its early introduction, created an estato upon condition, which became absolute when the condition was not performed. An equity of redemption was not known until tho chancellor interfered and modified the rigor of the common law, by entertaining the bill to redeem, and it is said, in 1 Paige, 67 : “ That the system of chancery foreclosure originated in a desire to protect a landed aristocracy, rather than as proceeding from any fixed principle of ^equity.” It will be recollected that John B. Germain (the common source of title) conveyed the lot in question, subject to our mortgage, and could grant only his interest or ostate therein. We are informed in 2 Black. Com. 103, “ That an estate in lands, tenements, and hereditaments, signified such interest as the tenant hath therein.” What interest had John B. Germain in said lot, as between him and the mortgagee after the execution and recording of the said mortgage, on November 26, 1841? Clearly an equity of redemption only. And in this principle all the English and American authorities coincide. In 2 Cow. 301, Judge Southerland correctly says : “ The estate of the mortgagee is a legal interest,” and “the estate of the mortgagor an equitable interest.” Judge McLean, 2 McL. 448: “ The mortgagee has the legal title.” Justice Washington, 9 Wheat. 499 : A purchaser with notice can be in no better situation than the person from whom he derives his title, and is bound by the same equity which would affect his right. The mortgagor, after forfeiture, has no title at law, and none in equity but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice, passes nothing but an equity of redemption, and the latter can, no moro than the mortgagor, assert that equity against the mortgagee, without paying the debt.
    In 2 Halst. 178, the court say, “ that it is a clear principle of law, that a mortgagee in possession can never be ousted by the mortgagor or any claiming under him, until the mortgage be paid.”
    In 13 Ves. 3, Lord Eldon remarks, “that a court of chancery will not take the possession from the mortgageo for the purpose of placing it even in the hands of the court, while a shilling is due.” In England, a mortgagor, after forfeiture, is considered only as a tenant at sufferance. Lord Tenterdon, 15 Eng. Com. Law, 336, says, “ the mortgagor is not in the situation of tenant at all, or, at all events, he is not more thari a tenant at sufferance, b;it in a peculiar character, and liable to be treated as tenant or trespasser, at the option of *the mortgagee,” 7 Eng. Com. Law, 204; and such is the language of all the English authorities. 3 East, 451; 1 D. & E. 383 ; Woodfall’s Land, and Ten. 83. There can be no doubt, in the words of Ch. J. Spencer, 20 Johns. 62, “that the mortgagee, as between him and the mortgagor, nas the right of entry, and is entitled to the possession of the promises,” and “ that the purchaser of an equity of redemption1 can aver no seizin or title against any other person than the mortgage debtor or his immediate tenant.” 10 Mass. 421, 425; 1 South. 269.
    But the defendant in error assumes that the sheriff’s deed is void, and conveys no title from an oversight in the draughtsman of the bill to foreclose; and that the plaintiff in ei’ror can not avail himself of the original mortgage in this action. The principle is too plain to be controverted, that a decree of foreclosure is conclusive only upon the parties to the suit. The estate of Kramer in the said lot was the equity of redemption as derived from Germain, and hold by him subject to the payment of the mortgage debt. Kramer, in taking a conveyance with notice of the mortgage, subjects himself to all the claims that existed in favor of Mousch, or his assigns, against Germain, and is precluded from setting up any title that could not have been asserted by Germain. If Kramer could hold his purchase discharged of the mortgage, it would enable the partios to commit a fraud. The plaintiff in error derives her title from a purchaser who pays his money on the faith of an order of court, under a judicial proceeding sanctioned and confirmed by the court, and application of the proceeds of the sale made by them. It would be a merited reproach to our jurisprudence, if, under those circumstances, a party could acquire what he never purchased—an estate beyond the power of Germain to dispose of,—an estate to be discharged by accident from the charge to which it was subjected. The principles of law are not of this variant “protean ” character. The plaintiff in error “ stands in the shoes ” of Ratterman, and as his legal assignee, is entitled to all his right, and may set up the *mortgage and protect her title under it—may use it as her shield and buckler. By her purchase from Loring (the purchaser under the decree), she comes into the place of all the parties to the bill, and holds by deed (through the sheriff) from them. The'purchaser has paid the amount adjudged to be duo Ratterman ; and he and those holding under him are to be considered as tho legal assigns of the mortgage, and may set it up as a muniment of title. No peculiar form of words is essential to the assignment of a mortgage. The assignment of the note is a good transfer of the mortgage. 4 Ohio, 318 ; 1 Blackf. 137. “ Whatever transfers the debt carries the estate with it.” 4 Burr. 978. Here is a solemn conveyance of the interest of all the parties to the suit, by the executive officer of the court, and assuredly passes all the interest of Ratterman in the mortgage. In 1 South. 273, “a purchaser at sheriff’s sale comes into the place of the defendant, and holds as if by deed from him, the sheriff being merely the agent of the law to transfer the title.” Den. v. Stockton, 7 Halst. 322, 324, was action brought to recover possession of mortgaged promises by the purchaser under the decree of foreclosure, who was also the mortgagor. The defense was, “that the proceedings in chancery and the sheriff’s sale were irregular and void,” etc. The court said, “ that by bidding at the sheriff’s sale, and accepting a deed, Jane Hart (the mortgagee) acknowledged no title inconsistent with her own. That act was intended to come in aid of her mortgage, and to perfect her title ; such would be the effect if the proceedings are valid. There is nothing in the nature of these proceedings which divests or suspends the legal title and right of possession until a sale take place. By that the estate of both the mortgagor and mortgagee are transferred to the purchaser.” Precisely as we claim in this case. That by the sale to David Loring, the estate of Germain and Ratterman was transferred to him, and thereby he is invested with their rights. It follows, therefore, that Doring having purchased the interest of Ratterman in the mortgaged premises, his grantee can protect *herself under the mortgage. In the language of the court, 10 Johns. 481, “although no regular foreclosure is shown, yet the assignee of the mortgagee, living in possession, may protect his possession under it.” And in 7 Cow. 13, 20, it is stated, “that a conveyance by a mortgagee as upon a statute foreclosure under the form of sale, even if the proceedings to foreclose be irregular, yet carries all the interest of tho mortgagee to the purchaser, as well in the debt as in the land mortgaged.” Such a deed operates as a good assignment of the mortgage, and the purchaser may claim as assignee. It is also there settled, “that the assignee of a mortgagee in possession will be protected against an action of ejectment by the mortgagor and all persons claiming under him, and this though his assignment was obtained upon a usurious consideration.” The only distinction in' this case is, that here, “the sheriff” (in the language of Washington, J., 3 Wash. 550,) “ is empowered by law to convey by deed to the purchaser, under an execution, all the right, title, interest, and estate of the defendant” (here the parties to the suit) “ as fully as the defendant himself, or an attorney empowered for that purpose by him, could have done. The officer in fact acts as such attorney, appointed for that purpose by law.' The purchase money is paid to the defendant in the execution, or is applied to his use in discharge of his debts, between whom and the purchaser the law raises a contract, in like manner as if the conveyance had been made by him. In tho case before the court, the interest of all parties to the suit passes through the agency of the sheriff to the purchaser, and enables him and his grantees to avail themselves of all securities.” Tho purchaser takes the interest of the mortgagee, and is invested with his rights. He is no stranger to the proceedings, but has connected himself with tho mortgage by the payment of the money, and is entitled to be subrogated in all his rights. Any departure from the principle would lead to great injustice, and the encouragement of a spirit of speculation in the purchase of equities of redemption utterly, worthless, except for the ^chance of some oversight on tho part of tho draughtsman. The defendant in error, by resorting to another forum, in the language of the court, 17 Mass. 427, “ has an adequate and convenient remedy, and well adapted to tho great end of all judicial proceedings, the doing of impartial justice to all parties.' For while on the one hand it moderates the rigor of the common law for the benefit of the mortgagor, it compels him on the other hand, to perform whatever equity and justice may require for the benefit of the piortgagee. It compels the mortgagor, when he applies for equity, to do equity. If ejectment would lie for the mortgagor upon payment of the debt, tho mortgagee would have no remedy to recover any disbursements made by him for repairs, for his right to demand them depends either upon the statute or the rules of equity. They are unknown to the common law, which considers tho mortgagee as the absolute owner.” The right of the defendant in error being then an equitable one merely, can only be enforced in chancery by a bill to redeem. This is the acknowledged law in England and the United States, and has been attempted to be shaken by a single case. 20 Wend. 260. As to that authority, the judge states that “the question of the invalidity of the sale was then presented for the first time. In that case the form of the master’s deed was peculiar in the granting clause, subject to all adverse claim to the same, and all chances and all risks of title,” and as his opinion may be considered one of first impression, it is not entitled to much weight. It is certainly,not sustained by reason or authority. It has been well remarked by Lord Eldon, “ that it is better that law should be certain than that every judge should speculate upon improvements in it;” and by Judge Southard, 1 South. 281, “that judge ought not to be led without authority that can not be resisted, into the establishment of principles unjust and unreasonable.” The cases cited by Judge Cowen, in favor of this novel proposition, are those in 3 Johns. 459, and others which only decide what we admit, “that the purchaser will take only a title as against the parties to the trust,” *and the reason assigned by Chancellor Kent for making all persons interested parties is, “that otherwise the mortgagor would take the surplus money.” This is the language of all those cases, “ that the decree of foreclosure is conclusive only upon the parties to the snit, and that upon a bill to redeem by other incumbrances, the purchaser is consoled in having his principal, interest, costs, taxes, etc., repaid him.” We have previously endeavored to show that the plaintiff in error is not to be treated as a stranger—that having deduced her title from Loring, the purchaser under the decree, she comes “into the seat” of the mortgagee by operation of law.
    James Riley, Morehead & G-Wynne, for defendant in error ;
    The mortgagor may sell and convey his title, both legal and equitable, to whom he pleases ; for he is the owner of the fee till foreclosure, subject to the right of the mortgagee to enter for breach of the condition, and pay himself out of the rents and profits, or to subject the land to sale for the payment of his demand. The purchaser from the mortgagor, therefore, takes the fee simple subject to the mortgagee’s lien, and only liable to be divested by the legal proceedings to enforce it at law by judgment and execution ; or in chancery by decree or sale. The plaintiff below, therefore, had the legal title, and, prima fade, the right to recover. Is that right taken away by the judicial proceedings ?
    1. If the mortgagee would divest the title of the mortgagor, or his grantee, by foreclosure proceedings, he must make the person holding that title a defendant; indeed, without that, the proceedings are a mere nullity, and do not in any manner affect the title, either of the mortgagor, or of the mortgagee himself. 20 Wend. 264; 9 Dana, 201; 10 Paige, 56.
    It is plain they do not affect the title of the mortgagor: for the court have obtained no jurisdiction over him. Indeed more; the complainant has not asked to have him *made a party to the foreclosure. A mere statement of this fact is sufficient. But see 10 Paige, 56; 5 Ib. 30; 6 Wend. 449, 453; 1 Dana, 278; 9 Ib. 201; 2 Blackf. 111, n. 1 Conn. 509; 1 Ohio, 101; 6 Ib. 44, 117, 535 ; 20 Wend. 264. There can be no presumption that one not named in the so-called foreclosure proceedings was made defendant, if his name does not occur in the record. 20 Wend. 265. If be were so named, he might show that he never was served, nor appeared; that he is not the person the judgment was rendered against which is sought to bo enforced. 6 Wend. 452; 1 Ohio, 100, 259; 2 Ib. 31, 334; 3 Ib. 44, 518; 7 Ib. 187, pt. 2; 12 Ib. 272.
    The distinction on which this action rests is stated in Story's Eq. PI, sec. 193. The proper parties defendant to a bill to foreclose are, all persons interested, who are to bo affected by the decree; all persons interested in the equity of redemption—all incumbrancers should be made parties, whether prior or subsequent; if such incumbrancers are not made parties, the decree does not bind them, and a decreo of sale would not. The prior incumbrancers are not bound, because their rights are paramount to the foreclosing party. Findlay v. Bank of the United States, 11 Wheat. 304; Delabare v. Norwood, 3 Swanst. 144; Shepherd v. Gruinnett, Ib. 151; Rose v. Page, 2 Simon, 471. There can not be a foreclosure where the mortgagee is not before the court. Powell Mort. 990, 991, n. a; Fell v. Brown, 2 Bro. 276; Polk v. Clinton, 12 Ves. 48, 59; Swift v. Edson, 5 Conn. 531. A mortgagor who has conveyed all his interest in the mortgaged premises can not sustain a bill to redeem; and if a mortgagee, who has assigned all his interest in the mortgage and mortgage debt, forecloses, the proceedings are a nullity. 2 Pick. 276; 5 Ib. 281; 24 Maine, 298; 9 Mass. 422; Powell Mort. 261, 262; 20 Wend. 260; 4 Dana, 232; 4 Hill, 175; 23 Maine, 25; 25 Ib. 392. Every foreclosure contains a redemption, and every redemption a foreclosure. If the mortgagor have nothing in the mortgaged premises, he can not redeem; and if the mortgagee, ^having nothing in the mortgage and mortgage debt, foreclose, it will be a nullity. There ■can be no foreclosure unless the mortgagor be before the court; .and incumbrancers are bound only as they are reached. It follows that if a junior mortgagee should foreclose without making .a senior mortgagee party, the senior mortgagee could eject the .purchaser at this junior foreclosure sale; and if tho mortgagor was not made party, he could eject the purchaser, having the par-. amount title, the fee; and the proceedings could not be used in evidence against him nor the sheriff’s'deed. John B. Germain had not one particle of interest in this land for months before the bill was filed against him, nor no one made defendant had one particle of interest in this land, and no one of the defendants could either redeem the mortgage or have it foreclosed against him so as to affect one particle in this title, acquired months before. 5 Conn. 531; 24 Maine, 298; 2 Pick. 276; 5 Ib. 281; 9 Mass. 422; Powell Mort. 261, 262; 20 Wend. 260; 4 Dana, 233; 4 Hill, 175; 23 Maine, 25; 25 Ib. 302. And as John B. Germain could neither redeem the mortgage, nor could the mortgage be foreclosed by filing a bill against him, having no interest in the mortgaged premises when the proceedings were commenced, David Loring stepping into the shoes of a man who could neither redeem nor foreclose the mortgage; neither could he, David Loring.
    2. As the foreclosure proceedings are no defense to this'action, the inquiry offers: can the tenant protect her possession by means of the mortgage ? That question must be answered in the negative. No person but the mortgagee or his assignee can set up the mortgage. 1 Ohio, 101; 2 Ib. 223-225; 20 Wend. 260; 4 Dana, 233; 4 Hill, 175 ; Doug. 631, 632; 2 Burr. 978, 979 ; 7 Johns. 282; 4 Ib. 43; 6 Ib. 290; 2 Ib. 380; 24 Maine, 198; 5 Halst. 158, 159; 1 South. 275; 2 Ib. 380; Adams Eject. 29, n. 3. “If the mortgage is to be set up, the mortgagee must join in the defense.” 1 Halst. 478; Esp. 783; 3 Term, 783; 3 Burr. 1293, 1297; Barnes, 193, 194; 8 Term, 645; Sel. *Prac. 1064; Adams Eject. 260; Comber. 209; Bull. N. P. 95.
    Having thrown out all the judicial proceedings, and shown that the defendant does not connect herself with the mortgage, the plaintiff below was entitled to recover the lands.
   Hitchcock, J.

This case presents a new question for the consideration of the court, which is this: Can the purchaser of the equity of redemption in mortgaged premises recover those premises in ejectment against one who has purchased the same under a decree foreclosing the equity, and directing the land to be sold, merely because that purchaser was not made party defendant in the bill to foreclose? Or, in other words, does the sale under such decree remove the incumbrance from the lands, and vest a perfect title in the purchaser of the equity of redemption ?

This is not, it is true, tho precise form of the question, but it is the substance; and, according to the decision of the superior court, the defendant in error, who derives title from the mortgagor through a conveyance subsequent to the date of the mortgage, and for the satisfaction of which the premises had been sold under a decree of a court of competent jurisdiction, recovers those promises discharged of the incumbrance, and this because the purchaser at the sheriff’s sale was a stranger; for it seems to be admitted that had the mortgagee, or an assignee of the mortgagee, purchased, it would have been well, and this action could not have been sustained.

Is this right? It certainly does not appear to be in accordance with justice. But if the law is so, that law should be enforced. Although many authorities have been cited by counsel to sustain this judgment, yet the one principally relied upon, and which was undoubtedly received by the superior court as conclusive of the case, is the case of Watson et al. v. Spence, 20 Wend. 260. That was a case substantially like the one now before the court, and decided as the case was in the court below—that is, the result was *the same in both cases. There had been a foreclosure and sale to a stranger, the mortgagor having parted with his interest before the bill was filed, and his vendee not having been made a party. The court adopt a course of reasoning by which they are brought to the conclusion that tho proceedings in chancery were void as to the vendee of the mortgagor because he was not a party; and that inasmuch as he might have maintained ejectment before the foreclosure against a stranger, he could after the foreclosure—although that stranger is a purchaser under the chancery proceedings; that a purchaser in such case acquires no interest in the land, except as against the original mortgagor; that he has no privity with the mortgagee, and can not be treated as an assignee. It is admitted at the same time that if the mortgagee, or an assignee of tho mortgagee, had purchased, or was in possession, the plaintiff could not recover.

Although we have the highest respect for the court making this decision, yet we are not entirely satisfied with the reasoning adopted or the decision made.

In this state we hold, as is held in New York, that in mortgages the debt is the principal, the mortgage the incident. That by assignment of the debt the mortgage is transferred. That by the payment of the debt, it is satisfied. We hold,' too, that as to all the world except the mortgagee, the mortgagor has a legal estate in the land mortgaged—an interest which may be sold on execution. But we hold that, as between the mortgagor and mortgagee, and those holding under either or both, after condition broken, tho legal estate becomes absolute in the mortgagee, still subject however, to be redeemed upon the payment ,of the debt secured. And this right of redemption continues until the land is sold under a proceeding in chancery. After condition broken, the mortgagee may maintain ejectment for the land, against the mortgagor or any one claiming under him. If the mortgagee or his assignee go into possession, neither the mortgagor, nor any person under him, can disturb this possession. *After condition broken, then the mortgagee has an interest in the land—as between the parties to the mortgage, he has the legal interest. Having this legal interest, be may file his bill in chancery for a foreclosure, or for a decree ordering a sale of tho mortgaged prem-' ises. To this bill he must, or ought to make the mortgagor a party. And he ought further to make all persons parties who have acquired interests in the property, either anterior or posterior to tho date of his mortgage. But suppose he does not, and a decree passes, what is the consequence? Counsel for defendant in error contend that the proceedings are absolutely null and void. That a decree in chancery is absolutely void unless all persons who have an interest in the subject matter are made parties. For if it would be void in a case like the one under consideration for that cause, it must for the same cause be void in every case. But it is not so. If the court have jurisdiction, all parties before it will be bound by the decree. As to those not parties to the suit, not before the court, the decree does not affect them; their interests remain as they were. The mortgagee having filed his bill making the mortgagor a party, regardless of those to whom the mortgagor may have transferred the equity of redemption, obtains a decree, and the land is sold,—what interest passes by the sale ?

Counsel suppose, and such seems to have been the opinion of the court in New York, that nothing passes but the interest of the mortgagor, who is defendant in the suit, and as that mortgagor had no interest, therefore that nothing passes. But such is not the case. When the bill is filed, the legal title, as between parties and privies, is in the mortgagee. The object of the bill is, that this may be sold—the land itself, the legal title to which is in the complainant, and that it may be sold divested of any equity of redemption. And it seems clearly to tho court, that when it ia sold, the purchaser takes the interest, not only of the defendants in the case, but the interest of the mortgagee; and that he takes it divested of any right of redemption on the part of those who are parties to the proceeding. So far *as tho land is concerned, he is subrogated to all the rights of tho mortgagee. A junior vendee of the mortgagor, under such circumstances, can not recover in ejectment against the purchaser at the judicial sale, such purchaser being in possession.

It is said, however, that such vendee was not a party to the judicial proceeding, and therefore as to him the proceedings are void. True, his interests are not affected by tho decree and sale. Still, the court have jurisdiction of the subject matter and of the parties before it. The decree is not a nullity. Now, what were the rights of the junior vendee? As to the mortgagee and those claiming under him, he has, and never had, any other interest than a mere equity of redemption. That right still remains. He may have a bill to redeem, but he can not sustain an ejectment.

These principles being applied, how stands the case before the court? On November 22, 1841, John B. Germain and wife mortgaged the land in controversy to one Anthony Mousch, to secure the payment of $300. Mousch assigned this mortgage to Ratter-man. On January 14, 1842, the mortgagor convoyed the same premises, under tho incumbrance of the mortgage, to Michael Germain, under whom, by intermediate conveyances, the lessor of the defendant in error claims title. On October 25, 1842, and after forfeiture of the conditions of the mortgage, Ratterman filed his bill in chancery for a foreclosure, and for the sale of the mortgaged premises. To this bill John G. Germain, Anthony Mousch, and others were made defendants; but Kramer, tho lessor of the defendant in error, was not made a defendant. A decree was obtained, and the laud sold under an order of sale to one David Loring. This sale was confirmed and a deed made by the sheriff to Loring, who convoyed to John Frische, husband of the plaintiff in error. Frisehe died in possession. By this proceeding and sale, all the interests of those made parties to the bill became vested in Loring. But the interest of Kramer, he not being a party, was not affected. That interest, ^however, as it respects the mortgagee and those claiming under him, or in his right, is a mere right to redeem. He has it still, but he can not sustain an ejectment. Possibly, as against a mere stranger, an intruder, he might; but not as against him in whom is vested the right of the mortgagee.

There is another view of the case, which will equally show the error of the superior court. By our practice, the proceedings in chancery, which we sometimes denominate proceedings to foreclose an equity of redemption, are in fact, in the nature of proceedings in rem. The object is to procure, by a decree of the court, the sale of the mortgaged premises, and for no other purpose. In the case of Ratterman v. Germain and others, such was the object of the bill. And upon this bill the court decreed that the mortgaged premises should bo sold. They were sold pursuant to the decree, by the proper officer of the court. Under this sale, unless the proceedings were utterly and entirely void, the purchaser took these identical mortgaged premises, and could transmit them to others.

The superior court, in excluding from the jury the evidence offered by.the plaintiff in error, and in charging the jury, that as against the plaintiff the lessor of the defendant in error had the legal title, committed an error. The court erred too, in refusing the second, third, and fourth instructions requested by the plaintiff in error.

The judgment is reversed, with costs, and the case remanded for further proceedings-  