Dec. 1830.

#### Francis S. Coxe v. Aaron Camp,

From Rutherford

If the mortgagee obtains judgment and execution for the mortgage debt, and under the act of 1812 fRev. e. 830) s< '>9 the equity of redemption, and becomes the purchaser, how is the relation between him and the mortgagor affected th-rehy ? Qu P

Does he abandon his mortgage, and become the owner of the land to al! purposes, and liable to pay the mortgagor the amount he bid at the sale, or is he still liable to an account and r-demption ? Qu ?

If a third person buys at such sale, does he hold the whole eqirt.ble estate in the land, and is he entitled to call for the legal title without payment of any thing beyond bis bid ? Qu?

But in such a case, the contract of sale being made will) the Sheriff, whatever may be right of the mortgagor in Equity, he cannot, at’ law,, recover the sum bid by the mortgagee.

Per Hesdkhsot, Chief-Justice. — No analogy exists between the Sheriff and an ordinary agent, so as to enable the person whose goods are sold by the former to recover the price in his own name, as the principal can, in a sale by the latter — because the power to the Sheriff is’ irrevocable.

Assumpsit «pon a special count, and for money bad and received by (he Defendant (o the use, of the Plaintiff. Plea JS/bn Assumpsit. On the trial, ¡¡is Honor Judge Mangum directed a nonsuit to be entered, with liberty to the Plaintiff to have it set aside, and a verdict entered for 298 dollars, if, upon the following f.iyts, the Court should be of opinion he was entitled to it.

The Plaintiff had purchased a tract of land of the Defendant at the price of 800 dollars, half of which was paid down, and to secure the balance, abend and mortgage of the same land, was executed to the Defendant. When the money thus secured became due, the Defendant commenced an action on the bond, obtained a judgment, issued an execution, and had it levied upon the, Plaintiff’s equity of redemption in the mortgaged premises. At the sale under this execution, the Sheriff gave notice that he offered the land for sale, subject to *503the Defendant’s mortgage. The Defendant became the purchaser for the sum of 298 dollars, which the Sheriff credited on the execution. The Defendant afterwards took measures to enforce the collection of the residue of his judgment from the Plaintiff. The mortgaged premises had been sold as the property of the Defendant. Upon these facts, his Honor retaining his original opinion, refused to set the nonsuit aside, and the Plaintiff appealed.

J. M. Carson, for the Plaintiff.

it is contended, that as Camp did not choose to go info a Court of Equity, but made his election to seil under our act of 1812, he purchased such interest at? an equity of redemption affords, and that from the very nature of the right, it could only be sold upon the terms of being subject to the mortgage debt. An equity of redemption, ex m termini, implies nothing short of taking the estate by discharging the mortgage. It is an interest- in the land, resulting upon the payment of the debt, and not otherwise. If Gamp had gone into a Court of Equity, he would have been compelled to take the estate under a decree of foreclosure, in lieu of his debt, or the land would have been sold free of the incumbrance, for the purpose of paying off his demand out of the proceeds of the sale. Under a decree of a Court of Equity, bidders would not have to encounter the incumbrance and pay a price above it, but ■•would know that they were to have the land free for whatever sum they bid it off at. Yery different were ^he terms of the sale in the present case. The bidders were notified that they took the land in the same way that Coxe held it, and that was, cum onere. Tiiey were bidding for Coxe’s right, not Camp’s, and the purchaser -(by our act) stands in the shoes of the mortgagor.

The Sheriff is directed by the 3d section of the act of 1812, so to express the right sold on the face of the deed. If the act of 1812, in its very text, authorizes the sale *504of an equity of redemption by a process at law, the Plain-tiffin theJi.fa. subjects himself to the terms of the act, and the expression “equity of redemp'ion,” implies a sale subject.to the mortgage debt. Neither the common law Court, nor the Sheriff has power to modify the terms of the sale, and an equity of redemption cannot be arrived at in any other way than by paying off 'he incum-brauce. Then, if the premises be correct, h >w do the parties stand ? Camp has a mortgage debt against Goxe. The interest of the latter in the mortgaged premises, consists solely of such value as they may afford, over and above the mortgage debt. The former, by directing his process at law against this resulting interest, does an act by wliiih it is implied, that the premises are worth more than tin debt. When he becomes the purchaser himself, h.> annihilates the incumbrance by the very terms of the sale, and therefore, whatever sum is bid. applies to die equity of redemption, and not to the mortgaged debt.

It was a misapplication of the sum bid at the sale, to enter it as a credit on the execution, for which the Defendant is liable in this action. If Camp had paid the money to the Sheriff, it would have been a protection to him ; but inasmuch as he has had tin- benefit of the sale on his part, be is the most proper person for Coxe to seek red-ess against.

In general, a mere servant, or agent, with whom a contract is made in behalf of another, cannot support an action thereon, and then fore, where A agreed in writ-irg. to p\y the rent of certain t»i!s, which hr had hired, to the Treasurer of certain CommCsioners, it was held, tlnst no action for the rent could be supported in the name of the Tre. surer. (Piggot v. Thompson 3B.Sp P. 147).

It is a gu.eral principle, that a person having a beneficial interest in a contract, may bring an action in bis own name. The Sheriff, as bailee, m y maintain trespass or uover, and having a beneficial interest in *505 Camp's bid, might, on that ground, have brought suit, (2 Saunder’s Rep, 47). But having consented to the misapplication of Camp's bid, does not tie up Code’s hands, inasmuch as he is the person having the principal interest in the subject matter.

No Counsel appeared for the Defendant.

Ruffin, Judge.

I regret that there is no contract between the Plaintiff and Defendant, and therefore that this action cannot be sustained. The Sheriff is between the parties and keeps them asunder.

But on the other question, 1 am not prepared to give an opinion, it isplain enough, when another creditor of the mortgagor sells the equity of redemption, what the rights of the mortgagor, mortgagee and purchaser are. But when the mortgagee himself sells the mortgaged premises, not under his mortgage, but under an execution at law/or the mortgage debt, a case is presented, requiring much consideration before pronouncing judgment. Oti the one hand it seems a contradiction in terms, that a sale should be made under execution, and yet the thing disposed of be sold, subject to the very debt mentioned in the execution, it would amount to this : that equities of redemption may he sold at Jaw, by all creditors except the mortgagee, for the mortgage debt. Fop if the mortgagor be entitled after the sale to an account, his equity is not in fact extinguished by the sale. Perhaps this would be the safest construction — that the mortgagee must proceed, on his contract, to foreclose ; ,~.4ñíó’ the act seems, as one of its objects, to give him iu this way a kind of legal foreclosure, instead of the more dilatory one in equity. Yet on the other hand, that may produce the greatest hardship, and appalling injustice to the debtor. If a sale at law between these parties be allowed at all, and a third person purchase, I do not know that it ought to be regarded as the sale of the equity of redemption merely ; but as those having the whole legal *506amj equitable interest, are parties to the proceeding, the 0„e as Plaintiff and the other as Defendant in the cxe-cation, it may be taken as a sale of the estate out and out. It '¡s Due the mortgagee’s legal title does not pass by the Sheriff’s deed ; but the purchaser might call for it in equity, without paying any more than his bid, since the mortgagee has had the full benefit of it. This, I suppose, is clear enough when the bid exceeds the mortgage debt. When it falls short of it, a difficulty arises. Upon the whole it seems to me to be a very nice point, and not fit to be settled but in a case which will make it absolutely necessary. Whatever may be the rights of the parties, they depend upon complicated equities, which can never be adjusted in a Court of Law : which is another reason why the Plaintiffs here cannot recover. I concur fully in that : but as to the equitable demands of either party I reserve myself altogether, until the question shall be directly made,in a proper case; and then I will bestow on it my best reflection.

Henderson, Chief-Justice.

The Plaintiff’s equity of redemption in the land, mortgaged by him to the Defendant to secure the sum of $400, liad been sold under an execution issued on a judgment, obtained by the Defendant against him for the mortgage debt, and bid off by the Defendant for the sum of *§298, which sum the Sheriff credited on the execution. The land has since been sold as Defendant’s property, to satisfy his creditors ; and the Defendant is now pursuing the PlaihfiiF/br what he calls the balance of the mortgage debt. 1’bis. action is brought by the Defendant in the execution, a* gainst the Plaintiff therein, to recover the amount of his bid, upon the.ground that it was so much bid over and above the mortgage debt, and therefore belongs to him. Or to speak more intelligibly, the biddings at such sales are the sums named or offered, added to the mortgage debt. And if the construction of the act of 1812 (Rev. & *507830) contended for is correct, the money thus bid belongs to the Defendant in the execution. But even if it does, can the action be sustained ? Is there any contract or privity between the Defendant in the execution and the bidder ? Is not the contract made with the Sheriff? Is he not the person to enforce it ? And if he omits or refuses to perforin his duty, is he not the person responsible to the Defendant ? Certainly no action can lie for this Plaintiff against the bidder, unless in analogy to those cases, where a contract is made by a mere agent, and the principal assumes the right to himself, and brings an action to enforce if. But these arc cases of mere agents to sell, and to collect if the principal pleases. The principal may put an end to the agency at his pleasure, and assume his rights to himself. When he does this he affirms the sale as his act, and can enforce performance. But is the Sheriff a mere agent to sell ? Is not his authority entire, and irrevocable? Do not his duties require, that his agency, if it be. one, should continue until the transaction is finished ? We think it does, and that he is the proper person to enforce the performance of the contract. The same principle would sustain an action against any purchaser at a Sheriff’s sale, where more is bid than will satisfy the execution. If this action will lie, an action will lie against such bidder, at the instance of the Defendant in the execution, to recover the surplus. If it be said, this is arguing in a circle, and that such an action will lie, it is answered, that cases of that kind are of daily occurrence, and yet we never have known such an action brought, which is strong evidence, that it could not be supported. Whatever therefore may be the just construction of the act of 1812, we think this action cannot be sustained.

Per Curiam. — Let the judgment below be affirmed,