Mr. Justice Green
delivered the opinion of the court,
This was an action of scire facias on a mortgage brought by the executor of the mortgagee against the mortgagor with notice to terre-tenants. The defence was payment. A considerable amount of the payments given in evidence consisted of moneys paid in excess of legal interest due .by the mortgagor, and claimed to be money of the mortgagor in the. hands of the mortgagee, and therefore to be deducted from the amount due upon the mortgage in suit. In point of fact the present mortgage was one of four originally given to secure payment of a debt of $12,441.43.- Each mortgage was upon a different tract, but the debt was a single indebtedness arising out of various transactions and the amount fixed by an undisputed settlement between the parties. The plaintiff’s testator executed a deed to the defendant, David P. Sulouff, on August 26th 1869, for séve.n tracts of land, the whole consideration being $13,441.43, of which $1000 was paid about the time of the conveyance. On the same day the grantee, Sulouff, executed four mortgages to the grantor Wright, upon four of the tracts for the payment of different sums -at different times, but aggregating the sum of $12.441.43. The mortgage in suit was one of these four, and was for $3175.30, payable on April 1st 1873, and covered a farm containing three hundred and thirty-two acres. On this mortgage usurious interest was paid, the amount of which is undisputed, and being deducted leaves a balance due February 23d 1878 of $2139.64. This sum, together with interest to the date of the verdict, was claimed asj;he amount due the plaintiff. - But the court permitted other payments of excessive interest upon the other mortgages to be deducted from the amount due upon the mortgage in suit, leaving a balance due of $800, and for this amount a verdict was entered by the direction of the court. The question is upon the correctness of the action of the court in allowing credit for the usurious interest paid upon the other mortgages. It would hardly be pretended that there was any error in the ruling of the court below if the parties had remained the same throughout, and the payments had all been made directly by the original mortgagor to the mortgagee. But the plaintiff claims, and it was the fact, that the parties did not remain the same, and that the payments were not all made by the mortgagor. On January 25th 1872, D. P. Sulouff and wife conveyed the land bound by the mortgage in suit to Keziah Sulouff in consideration of $1000, “ and the payment of the mortgage to John Wright by David P. Sulouff.” In the habendum clause of the deed was the provision that the property was to be held “subject to the payment of the lien of mortgage of John Wright by said David P. Sulouff.”
It is claimed that after this conveyance, Keziah Sulouff became the debtor for the mortgage of -Wright, that she was bound to pay the whole of it, and that no credit could be allowed for the usurious interest paid on the other mortgages by D. P. Sulouff. It is argued that D. P. Sulouff was free from all liability in relation to the mortgage, and could have .no possible interest in an action brought against the land, and further, that the sci. fa. on the mortgage was a proceeding in rem against the land alone. We cannot agree to the conclusions drawn from these premises. D. P. Sulouff, the original mortgagor, is one of the defendants in the suit. He gave a bond, the payment of which was secured by this mortgage, and, of course, he is personally liable, on the bond for the whole amount mentioned therein. If any deficiency should arise after the land is sold under the sci. fa., he would he obliged to make it good. He is,- therefore, directly interested, first, as an actual defendant on the record, and secondly, as being personally liable for the same debt and bound to respond for any deficiency resulting from the sale of the land. It would be very strange if-he could not be permitted to reduce the amount of his liability in an action against himself on the mortgage given to secure the payment of the bond upon which his personal liability remained. Moreover, although it may be very true that as between D. P. Sulouff and Keziah Sulouff, she was bound to pay the mortgage, that obligation on her part could not relieve him from his personal liability to Wright, the mortgagee. Again, it must be observed that Keziah Sulouff did not agree to pay any particular sum as representing the amount due upon the mortgage. It is not stated in the deed that she is to pay a specific money consideration, the aggregate of the mortgage and the $1000 to be paid to D..P. Sulouff. She is to pay him that $1000, and she is to pay also “the lien of the mortgage,” which means the amount due on the mortgage. What that amount is must be ascertained outside of the deed. As that sum was the amount legally due by D. P. Sulouff to John Wright, the state of the indebtedness between them becomes not merely a legitimate but a necessary subject of inquiry. It is too plain for argument that as between them the payments of usurious interest upon the other bonds and mortgages, the whole representing one original debt, may be deducted from the amount of the mortgage in suit. It follows that the court below was right in permitting the deduction of the amounts of excessive interest paid upon the other bonds given by the defendant, D. P. Sulouff to Wright, and therefore,
,The judgment is affirmed.