
    Southgate v. Taylor.
    Decided, Feb. 18th, 1817.
    , ricrtgíige-Assignment — Decree for Foreclosure— Riglat to Proílts Thereafter---Case at Bar. — 11' the assignee of a mortgage, haying obtained a decree of foreclosure and sale, become himself the highest bidder; but, in consideration of a sum of monev in hand, and a promise of the assignor to pay, in a short time, the balance of the debt, for which the assignment was made, he agree to hold the property as security for said debt, but in trust tor the assignor; a Court of lOciuity will compel him to give up and re-conyey the property, upon the assignor’s paying him the balance due on the bond, with the costs of the foreclosure and sale; deducting therefrom not only the actual profits, he received, while he held the property, but such profits as, but for his wilful default, he might have received, and also the amount of any waste or dilapidations, committed by him, or suffered by his neglect.
    Tn this case, the Appellant being Indebted by bond to Gilliat and Taylor, of the Borough of Norfolk, and having a morl-gage upon the reversion of a tract of land, which was then in the seisin of a Mr. Samuel Cary and Elizabeth Cary his wife, who held the life estate, made an assignment of that mortgage, to be placed, if received, to the credit of said bond. Gilliat and Taylor, as assignees, brought a suit in Chancery against Charles Grymes, the mortgagor, and obtained a Decree for the sale of the mortgaged premises, by Commissioners, appointed for that purpose. In May, 180S, (the life estate not having fallen in,) the reversion was advertised for sale in obedience to the Decree. Southgate, being alarmed, lest a forced sale of the reversion, for cash, might not produce the amount of the mortgage debt, interest and costs, (which would so far operate to his Injury,) attended the sale with what money he could raise, in order either to prevent it, or to purchase the property, if sold. The sale being had, he became the highest bidder at 7201. ; at which price the propertj' was struck off to him; but the agent “of Gilliat and Taylor, who was present, finding that he could not pay more than $450 of the purchase money, demanded that the land should be again set up; whereupon, it was purchased, by the said agent, for Richard Taylor, (who, it seems, was then the sole proprietor of the claim of Gilliat and Taylor upon the Bond and Mortgage,) for the same sum of 7201; apd a Deed was executed by the Commissioners, to Richard Taylor: but Southgate alleged, that 7201. not being equal to one half of the value of the property, Burcher, the agent, agreed, with him, that he would take with him what money Southgate had; and if Mr. Taylor would agree to it, he would pay him the money; upon which the said Taylor would hold the land as security for the debt, but in trust for Southgate, who would, in some short time, to be agreed upon, pay him, the said Taylor, the full amount of his bond, not taking into the account the sale of the land; bat that, it the said Taylor should insist upon claiming the purchase for himself, he, the said Burcher, would return the money to South-gate. Taylor denied that such agreement was made, or that he was bound by it ; yet it was certain that he received of Burcher the S4S0, which Southgate sent, and after-wards was very pressing for additional payments upon the Bond, which he received, at sundry times during the life of Mr. and Mrs. Carey, the tenants for life of the land, to the amount of $1922,66 cents; but, after the deaths of both those tenants, he insisted that the land was his own by virtue of the purchase aforesaid, and leased it one year as such, for the sum of $187,79 cents, rent. Eor several years he neglected to lease it to any body, and suffered it to be greatly injured by waste and dilapida-tions, to the amount, as Southgate alleged, of $1000. Taylor, claiming the land as bought by him for 7201. admitted that Southgate was entitled to a credit for that sum, and therefore that his Bond was considerably overpaid; but declared himself willing to pay the surplus. But Southgate, not acquiescing in this arrangement, filed his Bill against him in the Superior Court 6f Chancery for the Williamsburgh District, praying a Decree, that the defendant deliver up the Deed, made by the Commissioners upon the sale of the mortgaged premises, to be cancelled and set aside; that he surrender the possession of the land, with the mesne profits, to the Complainant, upon the Complainant’s paying the full amount of what might be due *upon the Bond; and that such farther and other relief be granted as should be agreeable to equity.
    Chancellor Nelson, upon the Bill, Answer, Exhibits and Examinations of Witnesses, decreed, that the defendant do deliver to the plaintiff possession of the land mentioned in the Bill, and all the title papers concerning the same, and convey and transfer all his right and title, &c., upon the plaintiffs paying to the defendant the balance that might be due on his Bond, of 8431. 10s. 4d., with legal interest on the same ’till paid; and all legal charges and costs, attending the prosecution of the suit brought in the County Court of Gloucester, by the defendant, against Charles Grymes, to foreclose the mortgage on the land aforesaid, and costs attending the sale thereof, after deducting therefrom the actual profits of the said land, which had accrued since the death of Elizabeth Cary, the surviving tenant for life; and directed, that a Commissioner examine, state and settle an account between the parties, in order to ascertain the balance, that might be due the defendant, and make report, &c.
    A Report being made by a Commissioner, shewing, upon the mode of stating the account prescribed by the Decree, a balance due Richard Taylor, of $1907 27 cents, with interest on $1597,48 cents, part thereof from January 1st, 1810, ’till paid; the Chancellor decreed farther, on the 23d of October, 1815, that, unless the plaintiff should, on or before the 23d of April ensuing, redeem the said land, by paying to the defendant the said balance and interest, certain persons appointed Commissioners, or any two of them, after giving three weeks previous notice in one of the Norfolk Newspapers, should expose to public sale, at auction, for ready money, the tract of land in the Bill mentioned, and out of the proceeds of sale, pay unto the defendant the said principal money, interests, and costs by him about his suit in this behalf expended, and the surplus of the proceeds of sale, if any, after deducting the expenses attendant thereon, pay unto the plaintiff, and make report thereof to the Court in order to a final Decree.
    From this Decree, the plaintiff was allowed an Appeal, upon a Petition to this Court.
    The Record was submitted without argument.
    
      
      See monographic note on “Mortgages” appended to Forkner v. Stuart, fi Gratt. 197.
    
   «"February, 18th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion that the Decree is erroneous in limiting the Commissioner to the actual profits, received from the land in controversy, and in not allowing to the Appellant credit for the amount of waste and dilapidations committed on the samé, after the death of Mrs. Elizabeth Cary, through the permission or negligence of the Appellee; it being the opinion of the Court, that, instead of the actual profits as aforesaid, the Appellee should be charged with such as he might have received but for his wilful default, to be settled by a Commissioner; and also that the amount of the waste and dilapidations aforesaid, if any, should be ascertained by an Issue.

The Decree is therefore reversed, with costs, so far as it conflicts with the above principles; and the residue thereof is affirmed; and the cause is remanded in order to be finally proceeded in.  