
    Anderson’s Administrator v. Davies’s Administrator, Widow, and Heir.
    Decided, Jan. 27th, 1820.
    ii. CSiaracery Practice — Several Mortgege-; Cue Debt. —in a Court of EquiLy. several mortgages, Iho’ appearing, upon their face, to he for distinct debts, will, under circumstances, be considered as merely additional evidence of, and securities for one original debt.
    2. Same -Mortgaged Premises — Decree for Safe.- — Guasre, whether it be regular in a decree for sale of mortgaged premises, to direct the proceeds of such sale to be paid oyer to the plaintiff, before the sale shall have been confirmed by the Court!-
    This was a suit in the Superior Court of Chancery for the Williamsburg District, to foreclose several mortgages on lands and slaves. The Bill, amended Bill, answers and Exhibits, presented much controversy between the parties, concerning the amount of the debt. Several orders of account were made; upon the last of which, x'a commissioner reported a statement, shewing a balance due the plaintiff of 1271. S. 9⅛, with interest thereon, at S per centum per annum, from the 13th of January 1804.
    Chancellor Kelson, being of opinion that this balance was the only sum due, and that the several mortgages in the Bill mentioned were not for distinct and different debts, but merely additional evidences of, and securities for, one original debt,  decreed, that, unless the defendants should, on or before a day specified, pay' to the plaintiff the said sum of 1273. S. ¾{, with interest as aforesaid, they should be barred and foreclosed of all equity and right-to redeem, &c.; and, in such event, that certain commissioners named in the decree, or any two of them, after giving three weeks previous notice in one of the Norfolk Newspapers, should expose to public sale, by auction, for ready money, the mortgaged premises, or such part thereof as should be sufficient for the purpose, and, out of the proceeds of the sale, pay to the plaintiff his said debts, interest and costs; and the surplus of the said proceeds, if any, after deducting the expenses attendant thereon, pay to the defendant Fortescue Whittle, administrator of Davies.
    The Commissioners reported, that, pursuant to this Decree, they advertised the property for sale ; but, the defendant Whittle having tendered them the money to be raised by such sale, to wit, $738 74 Cents, they, with the assent of the plaintiff, received the same, and paid it over to him, as appeared by his Receipt annexed to their Report; to which there was no exception.
    The Chancellor confirmed the said Report ; and, it appearing thereby, that the plaintiff had received the amount of his debt, interest, and costs, the final decree was that the defendants should pay only the costs incurred *by him since the rendition of the said interlocutory decree; whereupon, the plaintiff appealed.
    
      
       Mortgages.--See monographic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
       Chancery Practice — .Indicia! SaSes — Direction as to ¡Disbursement of Cash Payment, — In ArnoJdy. Cas-ner, 22 W. Va. 461, it is said: “A Judicial sale is the act of the court and not of the commissioner who offers tlie property and receives the bids. The sale Is not complete until a report of the bidding has been made and confirmed by the court. And therefore, it would be irregular though not sufficient ground, perhaps, to reverse the decree, for the court, by its decree ordering the sale, to direct the disbursement of the cash payment before the confirmation of the sale— Anderson v. Davies, 0 Munf. 486. The proper rule in such sales is, to direct in the decree ordering the sale that the cash payment shall be retained by the commissioners making the sale, or be paid into bank to the credit of the suit, subíect to the future order of the court. The purchase money being thus un ier the control of the court, will, upon the confirmation of the report or upon setting aside the sale be disposed of in the way that shall then seem proper — 2 Rob (old) Pr. 888.”
      See further, monographic note on “Judicial Sales” appended to walker v. Page. 21 Gratt. 030.
    
    
      
       Note. In one of the Mortgages in question, there was no reference to the other two; so that, upon it’s face, it did not appear to have been given for the same debt; but the allegations in the answers, and other circumstances, led to a different conclusion. — Note in Origina) Edition.
    
   After argument, by Leigh and Stanard for the appellant, and Wickham for the ap-pellees,

JUDGE ROANE

pronounced the Court’s opinion, as follows.

On the merits, the Court has no hesitation in affirming the Decree. Doubts are entertained, however, whether it was regular, in this case, to direct the proceeds of the sale of the mortgaged land to be paid over to the appellants, before the said sale was confirmed by the Court. This question may be considered hereafter, if it shall occur, before a fuller Court.  