
    Robert Cook vs. Hugh H. Fultz.
    The statute (How. & Hutch. 525, § 76,) which directs the mode of procedure upon the sale by decree of the chancery court, of mortgaged premises, provides, that lond with surety shall be taken from the purchaser, which if not paid at maturity, is to have the force and effect of a judgment, and execution may issue upon it; a decree, therefore, which directs, that on the sale of the mortgaged property, a note shall be taken for the purchase-money due the complainant, and if there be any surplus, a note for that surplus shall be taken, payable to the defendant, is erroneous, and, before a sale under the decree, will, on the appeal of the defendant, be reversed.
    On appeal from the decree of the vice-chancery court at Car-rollton ; Hon. Henry Dickinson, vice-chancellor.
    
      Robert Cook bought a tract of land of James Torrey, and took a deed of conveyance, and gave his note for the purchase-money. He joined in the execution of the indenture, by 'which he agreed, that the land should remain bound for the purchase-money. Torrey assigned the note to Fultz, who filed his bill in the vice-chancery court, seeking to subject the land to the payment of the note. A decree was rendered for complainant, by which, in substance, the commissioner appointed to make sale of the land, is directed to take a note from the purchaser with good security, payable to the complainant; and if the land should sell for more than the amount due to complainant, to take a note for the excess payable to Cook, the defendant.
    
      William G. Thompson, for appellant.
    The decree should have been, that the commissioner take from the purchaser a bond with good security, payable to Cook for the excess of the purchase-money, over and above the amount due to complainant. Cook would be entitled equally with complainant, to the summary remedy given by statute on the non-payment of the purchase-money. The statute does not authorize the issuing of an execution on a note given for the purchase-money. How. & Hutch. 525, § 76.
    
      William Thompson, on the same side.
    Brooke, for Appellee.
    The deed from Torrey to Cook expressly reserves a lien for the purchase-money. This is a lien created by express acts of the parties, and as such, is assignable. See Barker et al. v. Planters' Bank, 5 How. (Mi.) R. 571; Meigs’s R. 52; 9 Wend. 209.
   Mr. Justice ThacheR

delivered the opinion of the court.

The appellant purchased a tract of land of Torrey. He united in the conveyance, and therein covenanted that the land should remain bound for the purchase-money. The promissory ■note which thé appellant gave to Torrey to secure the payment of the purchase, was by him assigned to Fultz, who files his bill to subject the land to the payment of the promissory note.

The decree of the vice-chancellor is objected to. It is as follows : “ That the commissioner shall sell the land to the highest bidder on a credit of six months, unless the money is paid in twenty days, taking from the purchaser a note with good security payable to Fultz, with interest at the rate of eight per cent, per annum from the date of the decree, if the land sell for the amount of the decree or any less sum; and if the land sell for more than the amount of the decree, said commissioner shall take a note for such surplus, payable to said appellant, — said notes, if not paid at maturity, to have the force and effect of judgments.” No sale has been had under that decree. The objection to the decree is, that the statute H. & H. 525, § 76, does not authorize the issuance of an execution upon a note given for the payment of purchase-money, but only upon a bond so given. To this objection, it must be said, that such sales are regulated by statute, and the duty of the commissioner pointed out, as claimed by the appellant. The mode established by the statute should be observed, to entitle a party to its benefits and privileges.

The decree must be reversed, and a decree made in this court in compliance with the rule of the statute in such cases.  