
    Mitchell and Others v. Jones.
    Bill in chancery presenting the following facts : In 1836 A. executed, to B. a bond binding himself to execute to the latter, in 1838, a deed for certain land, and acknowledging the receipt of the purchase-money. Prior to this, A. had sold and conveyed the land to 0., taking his notes for the purchase-money, secured by mortgage. C. paid the first note, and A. obtained judgment on the second, which was unsatisfied. C. made improvements. JjaH|^L./l. assigned the mortgage to P. as an indemnity for becomhyj^^^^^HyL. on a certain note for 500 dollars. E. and F. obtained C., and the sheriff sold the land to P., on execution, nj^^^^^^need, and he took possession. Z>. paid 230 dollar's of A.’s debt, s^JHPnociorfcgage to him is a security but for 300 dollars, being the value of the property. A. and C. are insolvent. The Court decreed that P. should pay B. 72 dollars and 64 cents; that the equity of redemption be foreclosed, and B. recover costs of P. Held, that the decree was erroneous; that the bill could not be sustained either as one for a specific performance, or for the delivery up and cancellation of the mortgage, or as a bill to redeem the mortgage, or as a creditor’s bill.
    APPEAL from the Dearborn Circuit Court.
    
      Tuesday, May 28.
   Perkins, J.

Bill in chancery by William Jones against Elijah Mitchell, John Ritchey, and John Thompson. The case presents the following facts :

On the 7th of August, 1836, said Mitchell executed to Jones, the plaintiff, a sealed instrument, binding himself, for and in consideration of 700 dollars in hand paid, to convey to Jones, on the 1st day of September, 1838, the entire title, in fee simple, to a certain part of a lot in the town of Greensburg, Decatur county, Indiana.

On the 24th of July, 1833, Mitchell had sold the same ground, and conveyed it in fee simple to John Ritchey, for the consideration of 500 dollars, payable in five annual instalments, evidenced by promissory notes, and secured by mortgage on the ground sold. The mortgage was duly recorded. Ritchey paid the first of said notes., On the second, Mitchell obtained judgment in his own name, which judgment is still unsatisfied. Ritchey made improvements on the ground of at least 50 dollars in value.

On the 25th of November, 1834, Mitchell assigned his mortgage from Ritchey to John Thompson, as an indemnity to him for becoming surety for said Mitchell on, a note of over 500 dollars to one Sally Hurd.

On the 8th of October, 1834, Rhinehard and Son obtained a judgment in the Decatur Circuit Court against Ritchey. On the 6th of April, the sheriff of Decatur county sold the part of the lot in question, by virtue of an execution against Ritchey on the judgment of Rhinehard and Son, to John Thompson for 5 dollars, and executed to him a deed for the same, and Thompson took possession..

Thompson has paid about 230 doIlffipl|feihe Mitchell debt to Sally Hurd, and the mortgagdirb'jK^pifcAe/i is a security to him for but 300 dollars, that being the value at present of the ground covered by it.

After the rendition of the judgment in favor of Rhine-hard and Son against Ritchey, he and Thompson verbally agreed that the bargain between them for the part of the lot should be rescinded, and that Ritchey should re-convey the same to Mitchell, and the latter surrender the notes and mortgage to the former. This agreement was never executed, and amounts to nothing.

Mitchell and Ritchey are insolvent. Jones paid to Mitchell the purchase-money for the part of the lot in controversy before filing this bill. Upon these facts Jones, the plaintiff, prayed for general relief.

The Court decreed that Thompson should pay him 72 dollars and 64 cents; that the equity of redemption of Ritchey and Mitchell should be foreclosed; and that Jones should recover costs of Thompson.

This decree cannot be upheld, nor the bill sustained.

The bill cannot be supported as one for a specific performance, because the facts show that Mitchell, from whom alone the plaintiff holds any obligation for a title, has none himself, and can convey none to the plaintiff. No Court of Equity can compel Ritchey or Thompson to convey land to Mitchell, simply to enable him to fulfill his contract with Jones. As against Mitchell, the plaintiff’s only remedy is an action at law on his bond; and so the Court below seems to have considered.

C. H. Test and A. Davison, for the appellants.

It cannot be sustained as a bill for the delivery up and cancellation of the mortgage, for this plaintiff has no title to the land incumbered by it, and can procure none, and hence has no interest in it that will enable him to ask it to be cleared of incumbrance. It cannot be upheld as a bill to redeem said mortgage, for the plaintiff has no right, title, or interest in it. The mortgage was never assigned to him legally or equitably. Nor do we think it can be sustained as a creditor’s bill. It is time that Jones, by paying the purchase-money to Mitchell, for ground to which he c^jgjit ^et a title, is, in some sort, Mitchell’s creditor; but stil!|" this case does not fall within those in which a creditor has a right to go into equity to subject equitable interests to the payment of the debt due him. See the cases cited in Shirley v. Shields, 8 Blackf. 273. .

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c. 
      
       Blackford, J., ivas absent.
     