
    Bell vs. Brown's Adm'r.
    Appeal from a decree of the Court of Chancery. The chancellor’s opinion sufficiently states the case.
    Kilty, Chancellor,. (July term 1810.) A bill of revivor, has been filed by the complainant, (no.w appellee,) on a bill filed the 4th of September 1806, by his intestate, against the present-defendant, (now appellant,) and JV. Brewer. ,The object of that bill wa.s to have the contract annulled ; between Brown and the defendant Brewer, who had sold to him the properly in question, under a decree of this court in a suit by the defendant, Bell, against a certain TV. Brown, on a'mortgage held by the said Bell. It will be seen, from the proceedings in that suit, that a claim was, made by B. Ogle on a judgment prior to the mortgage, Which claim the complainant’s, intestate had procured an. assignment of,and which he had claimed the benefitof,and was 'about to make use of at law until restrained by an injunction from this court. From the, answer of Bell, and the agreement of June J*810, it appears that the whole case is submitted, aqd the interests of the several parties are. to be determined.
    By the counsel for. Bell it is contended, that Ogle lost his claim by bis own negligence, apd that the complainant’s intestate, having purchased at the sale by Brewer, the trustee, with a knowledge of that claim, ought not to be allowed any deduction on account tnereof, supposing it to be valid. But the chancellor is of opinion,, that the claim of B. Ogle was entitled to a preference, ami that it is now before the court to be considered ip the same manner as if he had been a party to the original bill. Decreed, that (the contract not being annulled as is therein prayed,) the injunction heretofore issued be perpetual, Decreed aL so, that the claim of the complainant on the judgment assigned by B. Ogle have a preference to the claim of the1 mortgagor, Bell, out of the proceeds of the sale made by the trustee, Bremer. From this decree the defendant, Bell, appealed to this court,
    
      ; Where lands* Which had been mortgaged, n-vre decreed to-be sold on a bill filed m chancery by the mortgagee, and su eh lands were sold, the proceeds of the sale, if there ib a judgment agninst the mortgagor prior to the moitgage, is first to be applied to the payment of such jirdgment, that having a preference to the claim of the mort« gasee ,
    
      The cause was argued before Chase, Ch. J, and Buchanan, Eaiire, and Martin, J. by
    Martin, for th.e Appellant;
    and by
    Magrudetfor the Appellee,
   DECREE AETTIRME©.  