
    Samuel McClure vs. Moses Mounce.
    When mortgaged land is sold without a regular foreclosure, either at law or equity, a purchaser buys no other interest than an equity of üedemption: And where it had been sold under an execution. recovered upon the bond upon which the mortgag-e was given, blit th<t money appliedto satisfy an older judgment, the court granted leave upon suggestion, to have the land resold to satisfy the mortgage.
    Tried, before Mr. Justice Noté, Richland district, Spring Term, 1823.
    The defendant Mounce, was indebted to the plaintiff McClure, by bond, on which the plaintiff got judgment, and issued execution. The sheriff levied on Mounce’s land ; sold it, and Kinsler became the purchaser at $200. The sheriff was ruled to pay the money to the plaintiff, and shewed for cause, that he had an older execution against Mounce in his office, belonging to one Smith. The plaintiff then produced a mortgage of the same lands, given to secure the payment of his bond of older date than Smith’s execution.
    The court refused to recognize his right as mortgagee or to order the money to be paid to him. The plaintiff then filed his suggestion of the mortgage, according to the provisions of the act, making Smith, Kinsler and Mounce parties, by notice.
    The plaintiff moved to reverse the decision, and that the order might be granted, because the sheriff sold only Mounce’s equity of redemption, and if the order was not granted, that the money raised by the sheriff should be paid to the plaintiff, McClure.
    
   Mr. Justice Colcocle

delivered the opinion of the court:

This case can admit of no doubt after the decision of the case Ex parte, City Sheriff, (1 McCord, 399.) The abstract question is, when mortgaged land is sold without a regular foreclosure, either at law or in equity, what interest passes to the purchaser ? And the case above mentioned, furnishes a direct answer. — The equity of redemption only is sold. It is said this case differs from the case' of the City Sheriff m this, that here the plaintiff's execution was lodged, and he must be considered as ordering the.land to be sold j and that in that case, the mortgagee was the purchaser, and here the land was bought by a stranger. The latter point of difference does exist, but cannot vary the principle. As to the first, I am not satisfied that it does exist, but if it do, the lodgment of the plaintiff’s execution in the sheriff ’s office, cannot be considered as a direction to the sheriff to sell this particular piece of property, for the execution is general in its terms. It issues against all the defendant’s property, both real and personal. If, however, he had given a written direction to the sheriff to sell this plantation, it could not have altered the case, The fee in mortgaged premises cannot be sold except by foreclosure of the mortgage in Equity or in the Court of Common Law, agreeably to the provisions of the act of assembly. Can it be contended that there is any right existing in a creditor, to divest his debtor of this legal protection which the law has placed ■around his property ? I presume not. He has no reason to believe that any thing is sold, but the equity of redemption, until he is called on in some court, to shew cause why that should not be done. If he had been so called on, may henothave paid the debt and discharged the lien ? It was also urged that the purchaser, by this mode of proceeding, is taken in. He thought he was buying the fee. This is the common lot of purchasers at sheriff’s sales. Suppose a sheriff sells a tract of land in which a defendant has only a life estate, can it be said the whole interest should pass because the purchaser thought he was •buying it ?

But in this case, there were means offered, to the purchaser by which he could have known that the fee was not sold, or at all events been put upon the enquiry, viz ¡ The mortgage was recorded.

The motion to foreclose is granted.

Justices Richardson and Huger, concurred.

Mr. Justice Gantt:

I dissent expressly from the opinion in this case. The sale of the land was at the instance of the mortgagee, and thereby the equity of redemption was purchased, and a title in fee- secured to the purchaser. It was competent for the mortgagee to avail himself of the benefit of the specific lien created by the mortgage, or waive it and proceed under his execution, to sell the land at Common Law. He chose the latter, and consequently waived his right under the mortgage. It being therefore the act of the mortgagee himself, by which the purchaser who paid the full value of the land, and without notice at the time of sale as to the interest sold, was imposed upon, he cannot set up his right, under the mortgage to defeat the sale. It was the expectation of the mortgagee that the .fee was to be sold, and it was only añer he found there was an older, execution that he repented ; which was too late.

De Ñaitssvre, for the motion.

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