
    Cornelius Arnett and others, appellants, and John Finney and others, respondents.
    Where a decree simply ordered the sale of realty to satisfy a first mortgage,—Held, that the owners of the fee (who bought after certain mechanics had acquired a lien on the premises, but before their claim was actually filed) were estopped after such sale, and the surplus ■brought into court, from controverting that the lien covered other machinery put on the premises by such owners after the lien was filed, and included in the sale, on the ground that such machinery was not fixtures.
    On appeal from a decree of the chancellor. His opinion, founded on an order of Chancellor Zabriskie, is reported in Case v. Arnett, 11 C. JE. Gr. 459.
    
      
      Mr. 0. A. Skillman, for appellants.
    
      Mr. Gr. A. Allen, for respondents.
   Woodhull, J.

The question presented in this case, and the material facts, sufficiently appear in the opinion of the chancellor. The decree appealed from seems to us erroneous, in assuming .that- the money now in court was derived from, and is the proceeds of, the machinery which Thatcher and the respondents had put upon the mortgaged premises.

The decree in the original suit and the execution issued thereon having been for the sale of real estate only—the mortgaged premises—and the sheriff having no authority to pass title for any property which was not real estate, the sum realized from that sale must now, according to the record, be regarded simply as the proceeds of the mortgaged premises, and, as such, should be applied to the payment, in their proper order, of such debts as had been secured by valid liens on the mortgaged premises. The debt secured by the first lien (the Yan Dyke mortgage) having been paid in full out of these proceeds, leaving a balance of $3,282.69 (the money now in court), we are of the opinion that this balance, so far as it may be needed for the purpose, should be applied to the payment of the amounts due to the appellants, respectively, on claims secured by mechanics liens upon the mortgaged premises.

The decree appealed from is reversed, with costs of the appeal and of the court below.

Decree unanimously reversed.  