— The opinion of the court was delivered by
Sterrett, J.
The facts of this case, as disclosed by the petition and answer, are fully stated in the opinion of the Court below. In March, 1866, a mortgage of one hundred and twelve acres of land was made by Isaac Eisenhower, Mary L., his wife, and Elizabeth Ulsh, as security for the payment of their bond for $1,000 in favor of William Cameron. Judgment was afterwards obtained on the mortgage for $1,902 66 debt and interest, and on July 3,1882, the same was assigned to Miss Foster, the appellee. In February, 1871, the three mortgagors, above named conveyed the same premises, subject to the mortgage to Charles 1H. Shriner for the consideration of $6,000, out of which he agreed to pay the mortgage, but never paid it. On the day after the last-mentioned conveyance, Shriner, by deed, not recorded until February 20, 1877, conveyed thirty-two acres of the same land in fee to Mrs. Ulsh. Afterwards the residue of the tract was sold and conveyed by Shriner, in parcels as follows, viz: April, 1871, fifty-three acres and sixty-two perches to Mary M. Zeller; April, 1874, eight and a half acres to Jacob Boyer; August, 1875, ten acres to Henry Zeller, and November, 1875, the residue to Charles Thomas. The part conveyed to Mrs. Ulsh in February, 1871, as above stated, was subsequently sold by the sheriff, as her property, and conveyed to appellant in December, 1878. In the sale to Mrs. Zeller a mortgage for $1,600 purchase-money, recorded June 26, 1871, was given to Shriner and assigned the ¡same day to the appellee, Miss Foster. She is therefore the holder of both mortgages, viz : the Cameron mortgage, which is the first lien on the whole tract of one hundred and twelve acres, antedating the conveyance to Shriner, and the Zeller mortgage, which is a second lien on the portion conveyed to Mrs. Zeller. As sheriff’s vendee of the portion conveyed to Mrs. Ulsh, appellant contends that he has equities which entitle him to pay the Cameron mortgage and take an assignment thereof, to the end that he may collect the same from the Mrs. Zeller lot in relief of his own lot. The refusal of the learned judge to make an order requiring Miss Foster to accept thedebt, interest, and costs of the Cameron mortgage and assign the security to appellant is the subject of complaint in the several specifications of errors.
In view of the facts, as they appear of record, and for reasons given by the learned judge, we think the order prayed for was rightly refused. As the sheriff’s vendee of Mrs. Ulsh’s interest in the thirty-two-acre tract, appellant occupies no better position than she did before the sale. In her hands the land was bound by the mortgage given by herself and her coobligors to secure their joint indebtedness to the holder thereof. While that remained unpaid she had no equity, as against the holder of the mortgage, that would justify the Court in making an order postponing the sale of her portion of the mortgaged premises until the residue thereof was exhausted. Being one of the mortgagors who created the incumbrance to secure their joint indebtedness, and whose duty it was, at least as between themselves and their creditor, to pay the same, she was in no position to claim the equitable interference of the Court for the protection of her portion of the mortgaged premises. Nor did appellant, by purchasing at a judicial sale or otherwise, acquire any equity on which to ground his application for the order which the Court declined to make. It would have been otherwise, if the sale to him had been clear of all incumbrances ; but it was not. It was made on a judgment, and, as a matter of course, he purchased subject to the mortgage, which is the first lien. It appears, moreover, upon the face of the sheriff’s return that the land was sold subject to the mortgage, of which public notice was given at the time of sale. As was said in Carpenter v. Koons, 8 Harris, 222, there is a wide and palpable difference between one who buys land subject to a mortgage and has a reduction in price equal to the amount of the lien, and another who pays its full value. The assignments of error are not sustained.
Decree affirmed and appeal dismissed at the costs of appellant.