
    
      PARKINS & AL. vs. CAMPBELL & AL.
    
    West’n Dis'ct
    
      October, 1826.
    When a debt is due at several instalments, and the transferee of the second causes the property to be seized & sold, the purchaser at the sale cannot be disturbed by an action at the suit of a creditor to whom the first instalment was assigned. How the proceeds of the sale should be divided quere.
    
    Appeal from the court of the sixth district.
   Matthews, J.

delivered the opinion of the court. In this case the plaintiffs obtained an injunction, by which proceedings on an order of seizure were delayed, wherein the defendants were about to cause to be sold a tract of land claimed by said plaintiffs.

On hearing the cause, the injunction was made perpetual, from which the defendants appealed.

The facts of the case shew, that the appellants being indebted to the appellees, transferred to the former a debt, which the latter held on a third person, secured by mortgage on the land which they attempted to seize and sell as above stated. The claim transferred was a second instalment of the debt thus secured by mortgage, on which the mortgaged property was regularly seized and sold for the benefit of the transferees, was purchased by their agent and the title transferred to them, or one of them. Since this sale the order of seizure, or execution, complained of in the petition for an injunction, issued in favor of the appellants on a previous instalment, which was secured by the same act of mortgage, and which is perpetually enjoined by the judgment of the district court.

Baldwin for the plaintiffs, Scott for the defendants.

We are of opinion that the judgment thus rendered is correct.

The persons in whom the right to the first instalment remained, having taken no steps to enforce their claim, until after the second became due, and the mortgaged property was seized and sold under it, have lost their lien on said property, in the hands of third possessors. The sale under the mortgage destroyed entirely its force, and gave a complete title to the purchaser.

How the proceeds arising from such sale should be divided, or whether they be subject to division and partition between the owners of the different instalments secured by the hypothecation, are questions which do not occur in the present suit.

I: is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  