isfaction was not entered upon the record. The payment was not stated to be for the use of the Bank of the United States; and writs of scire facias have been brought to revive the judgments. It having been discovered that the trust deed of the 9th April, 1824, did not include all the property of George Peter within the district, on the 1st October, 1829, he executed another deed of trust to Thomas Peter, for ten lots in the city of Washington, which were required to be sold, and the proceeds applied in paying certain judgments against George Peter as drawer, and Thomas Peter as indorser. One of the judgments specified was obtained by the Bank of the United States. And on 7th May, 1830, another deed of trust was executed by George Peter to Thomas Peter, including the above ten lots and one other lot in the city of Washington. This deed was designed to remedy some defect or informality in the first deed for the ten lots, and to convey one other lot; the same judgments are recited as in the first deed, and the same trust declared. These eleven lots were sold by Richard Smith, in October, 1829, and May, 1830, for $5,280.70. In 1834 Thomas Peter died, and this proceeding is carried on by his executors, who, with George Peter, filed their bill stating the above facts, and praying that Richard Smith and the Bank of the United States be decreed to pay over the proceeds of the sale of the eleven lots in their possession to the creditors named in the trust deed of 9th April, 1824. This application is made on the ground that as the judgments of the Union Bank were a lien upon the eleven lots, and were paid out of the trust funds, the trustee, in behalf of the creditors and himself, has a right, in equity, to the proceeds of the sale of these lots, under the lien of the judgments. This claim is resisted by the Bank of the United States, on the ground that the judgment obtained by the bank for $5,000, in May, 1824, long before the execution of the deed of trust for these lots, constituted a lien upon them, after the discharge of the judgments of the Union Bank. There were other judgments against George Peter, rendered in May, 1824, which were not provided for in the trust deed of April, 1824, and which claim a proportionate interest with the Bank of the United States, in the lien on the eleven lots. This claim is not resisted by the Bank of the United States, which claims out of the proceeds of the Auken, 3 Barb. 534; Fell v. Brown, 2 Bro. C. C. 276; Stonehewer v. Thompson, 2 Atk. 440; 8 P. Wms. 331; 4 Kent's Com. 162, marg. page; 2 Story Eq. Jur. sec. 1023; Willard Eq. Jur. 447; Burnet v. Dennison, 5 Johns. Ch. 35; Rosevelt v. Bank of Niagara, Hopk. 579; Averill v. Taylor, 4 Seld. 44. One who has a junior llen by mortgage or judgment is entitled, upon paying the prior mortgage, to be subrogated to the right of the mortgagee, without any assignment. Ellsworth v. Lockwood, 42 N. Y. 89. Where parties, while in possession of premises under a contract to purchase, and by virtue of a deed of the same, purchase overdue and unpaid mortgages of the vendors, upon the premises, they become, by such purchase, substituted in place of the mortgagees, and are entitled, by subrogation, to all the rights of mortgagees in possession. Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 2 Robt. 642. sale of the eleven lots, as its dividend, the sum of $2,428.62. And the question in this controversy is whether the proceeds of the sale of the eleven lots shall be paid to the creditors named in the deed of trust of the 9th April, 1824, to the Bank of the United States, on their [*125 judgment, and on the other judgments of May, 1824, under which the lien is set up; or to the creditors named in the trust deeds of these lots of 1829 and 1830. Although the bill in this case in its specific prayer does not extend beyond an application of this fund under the first deed of trust, yet there are certain agreements and admissions on the record which authorize the court to make a final decision in the case. It seems that a satisfaction has not been entered on the judgments of the Union Bank, although they have been paid in full. The entry that this payment was made for the use of the Bank of the United States can have no effect favorable to the Bank of the present question. Under the trust deed, the Bank of the United States had but a common interest with the other creditors named in discharging or controlling the lien of these judgments. And it is on the discharge of this incumbrance by the trustee out of the trust fund, that he sets up the right in equity, in behalf of himself and the creditors named in the deed, to be subrogated to all the rights of the Union Bank as plaintiffs in the judgments. It is a well settled principle in equity, where a judgment creditor, who is compelled to pay off prior incumbrances on land to obtain the benefit of his judgment, may by assignment, secure to himself the rights of the incumbrances. And the same rule applies where a junior mortgagee, to save his lien, is obliged to satisfy prior mortgages on the same estate. He stands as the assignee of such mortgages, and may claim all the benefits under the lien that could have been claimed by his assignor. But the effect of this principle is controlled in the present case by the subsequent acts of the parties. If the lien of the judgments of the Union Bank had been unconditionally extinguished, the lien of the judgment of the Bank of the United States, and the other judgments of the same date, would have attached to the eleven lots; but this effect has also been controlled by the acts of the parties. The judgments of the Union Bank were not paid until January, 1830. So that prior to this This is a right which the parties in possession can set up and make available by way of defense in an action brought against them. Ibid. The plaintiff in an action for the foreclosure of a mortgage, on the payment or tender to him of his mortgage debts and costs, can make no equitable or effectual resistance to a claim for subrogation, on the part of anyone who has an interest in the property, which can only be saved by, or which would be seriously endangered without, the proposed substitution. McLean v. Tompkins, 18 Abb. Pr. N. Y. 24. A junior mortgagee, who, by arrangement with the owner of the premises, pays off the prior incumbrance, is entitled to be subrogated thereto. Patterson v. Birdsall, 6 Hun. 632. A second mortgagee has the right to redeem prior mortgage, and to be subrogated to all securities held by the prior incumbrancer. Duigs ▼. Parshall, 7 Hun, 522. have postponed either the lien of the Union Bank or the rights under the deed of trust, in behalf of the judgment of the Bank of the United States; but would have directed that the eleven lots should be sold under the judgments of the Union Bank. time, on no principle could the lien of these judgments be held to be extinguished. And before this time the trust deed was executed. This deed was executed on the 1st October, 1829, and it contains the following recital: "Whereas, the said George Peter is indebted to the president, directors and company of the This would have been the correct rule under Bank of the United States; to the president these conflicting rights; but the case turns on and directors of the Union Bank of Georgetown, the deeds of trust of 1829 and 1830, which conand to the president and directors of the Farm-veyed the title, subject only to the prior lien of ers' and Mechanics' Bank of Georgetown, in the judgments of the Union Bank. And this divers large sums of money, for which the said was done with the consent of the agent of the George Peter gave his several promissory notes, Bank of the United States. We think this conpayable to the said Thomas Peter, and by him sent, as shown in the deeds and the sale of the indorsed to the said banks, upon which notes eleven lots, connected with the facts of the judgments have been obtained," etc. And the case, goes to establish the trust deeds; and that lots are conveyed to Thomas Peter in trust for the proceeds of the sale of these lots must be the payment of the above judgments, and were paid over on the judgments specified in the sold in October, 1829, and May, 1830, by Rich- deeds according to their respective priorities. ard Smith, agent for the trustees and the cred126*] itors named in the deed. He was cashier of the Branch Bank of the United States at Washington, and represented the interests of the bank in the proceeding. From these facts, it appears that before the judgments of the Union Bank were satisfied, and consequently before there was any pretense that the lien of these judgments on these lots was extinguished, with the consent and ap- | probation of all the parties interested, the deed of the 1st October, 1829, was executed. That this arrangement was made with the approbation of the Bank of the United States is clear from the face of the deed, and the agency of Smith in selling the property. Except by virtue of the trust deed, Smith had no right to sell the property, and acting as he did for the creditors named in the deed, among which the Bank of the United States was prominent, it is too late for the bank, after the sale, to disavow his agency. The contingent lien of the bank on the eleven lots, by virtue of its judgment, in May, 1824, does not seem to have been considered by the bank or the trustee, when the trust deed was executed, as of any value. It depended entirely on the unconditional extinguishment of the lien under the judgments of the Union Bank. It is contended that as the judgments of the Union Bank were a lien upon all the real estate of George Peter in the district, that the court would have directed executions on these judgments to be levied on the property of Peter, other than the eleven lots; so as to have left them to be sold under the judgment of the Bank of the United States. And that the same rule should now prevail. The answer to this is that before the judgment of the Bank of the United States was rendered, the first deed of trust was executed, which embraced all the property of Peter in the district except the eleven lots. That this deed was valid, and that the rule would have been applied as between the lien of the Union Bank and the grantee of the first deed of trust, but not as to subsequent liens. *As the decree of the Circuit Court is [*127 not in accordance with this view of the case, it must be reversed, and the case sent down for further proceedings. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is adjudged and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, and this cause be remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court. *CHARLES KING, Appellant, V. [*128 JOSIAS THOMPSON et al., Heirs-at-law of Alleged contract to convey realty-property A bill was filed claiming a specific performance of an alleged contract to convey a house and lot in Georgetown, for the benefit of the wife of the complainant, the complainant having expended a large sum of money in improving the property, in the expectation that it would be conveyed as required by the bill. The court not considering that sufficient evidence of an agreement to convey the prop erty was given, ordered that the property should be sold, and out of the proceeds that the advances made by the complainant should be repaid. The property sold for a sum far less than the amount expended. Held, that the balance unpaid after the sale was not a debt due by the estate of the father of the wife, and could not be claimed of his representatives. Columbia, N appeal for the Circuit Court of the Unitthe County of Washington. In December, 1822, the appellant filed in the Circuit Court a creditor's bill in the usual form against the appellees, praying for the sale of the real estate of George King, deceased, in aid Here are the judgment lien and the trust of his personal estate. It appeared that George deed, covering the same property, except the King had died intestate and insolvent in 1820, eleven lots, which are covered by the judg- and with the assent of the defendants a decree ments, but not by the deed. The judgment of of sale of his real estate was made in January, the Bank of the United States created no lien. 1823. Under this decree sales were made, reUnder such circumstances, the court could not' ported, and confirmed; and in March, 1831, a final sale of all the real estate was made except a house and lot on Civil Alley in Georgetown, which sale, on the claim of Josias Thompson and wife, was set aside in April, 1831. As the sales were made, audits of the accounts of the estate and the claims were made from March, 1827, to March, 1836. On the last report of the auditors coming before the court, Alexander Caldwell, administrator of Josias Thompson, who had become deceased, exhibited to the Circuit Court a claim against George King for a dividend out of the assets of his estate, and on his motion the auditor's report was recommitted. The record made the case of George King's heirs et al., appellants, v. Josias Thompson et ux, 9 Peters, 204, a part of this case. Josias Thompson and wife, in the case referred to, had claimed of the heirs of George King that the house and lot on Civil Alley in Georgetown should be conveyed to them, alleging that an agreement to that effect had been made with them in his lifetime by George King, Josias Thompson having married the daughter of George King, and in consideration of this agreement Josias Thompson had laid out four thousand dollars in buildings and improvements on the lot. The court not being satisfied upon the evidence that a decree for the conveyance of the property should be made, ordered that a sale of the property should be made, and that the proceeds should be first applied to repay to Josias Thompson the sum of four thousand dollars laid out on the same, and that the balance should be paid over for the benefit of the creditors of George King. Under this decree the property was sold, and 129*] it produced the sum of eight hundred and twenty-seven dollars, leaving of the sum expended by Josias Thompson, three thousand one hundred and seventy-three dollars, unpaid. In April, 1837, the administrator of Josias Thompson claimed from the estate of George King a dividend on the sum of four thousand dollars, the amount laid out on the house and lot, being two thousand six hundred and twenty-six dollars, less the sum of eight hundred and twenty-seven dollars, the proceeds of the house and lot. This claim was made on the allegation that Josias Thompson was a creditor of George King to the amount of four thousand dollars, by the expenditure of that sum on the house and lot, and that he was entitled to come in and have, on that amount, an equal dividend with the other creditors of the estate of George King, deducting the proceeds of the property in Georgetown. The Circuit court made a decree allowing to the administrator of Josias Thompson the amount claimed by him, and the defendants prosecuted this appeal. The case was argued by Mr. Clement Cox for the appellant, and by Mr. Coxe for the appel lees. Mr. Cox, for the appellant, insisted: 1. That the decree in 9 Peters's Rep. 203, does not operate as an estoppel of the exceptions, the issues in this case being different. 1 Starkie on Evidence, 202; Collinson v. Owens, 6 Gill & Johns. 4, 11. 2. That otherwise the exceptions in the Cir cuit Court were well taken, and ought to have been allowed. He cites, in support of the 1st exception taken below, 9 Peters's Rep. 204; Briscoe v. King, Cro. Jac. 281, and in support of 3d exception. Strike v. M'Donald and Son, 2 Harr. & Gill. 181; Harwood v. Rawling's Heirs, 4 Harr. & Johns. 126; Duvall v. Green, Ib. 270. As to the first point. The parties in this case are different from those before this court in the case in 9 Peters. These are creditors of George King; and as that was a proceeding for a specific performance of an alleged contract with George King, to which these creditors could not be parties, the decree of the court could not be an estoppel. In that case no claim of indebtedness was raised or presented against the estate of George King. It was commenced and prosecuted on the allegation that the property on which the money had been expended had been promised to the wife of Josias Thompson, the daughter of George King, and its sole purpose was to obtain a conveyance of the property. There was no contract made with George King, upon which the money was expended by Josias Thompson, for the benefit of George King, and this court will not see in the case anything to found a contract of this nature. The whole object of the proceeding in the case in 9 Peters has been obtained. The complainant in that case *has drained the whole [*130 of the proceeds of the sale of the house and lot. The claim of Josias Thompson was complete, such as it was at the death of George King in 1820, and until 1837 no assertion is made by Josias Thompson or by anyone for him that the estate of George King was indebted to him. In his lifetime, Josias Thompson made no claim, it was left to his administrator to present and assert it. It is at an end, by force of the statute of limitations. A mortgage does not imply a personal obligation for the payment of any portion of the debt, which the property mortgaged may not produce by a sale. The saving in a mortgage is for the benefit of the mortgageor. Briscoe v. King, Cro. Jac. 281. Mr. Coxe, for the appellecs, contended that the decree of the Circuit Court was right. It was founded on the report of the auditor, who it is to be presumed had full evidence of the facts on which the report is founded. The lien on the house and lot for advances made by Josias Thompson was established by the decree of the court in the case in 9 Peters The balance, beyond what the house and lot would produce by a sale, was a debt due by the estate of George King. The claim of the administrator of Josias Thompson is in full accordance with the principles established by this court in its decision in 9 Peters. Mr. Justice Catron delivered the opinion of the court: In 1812 Thompson married the daughter of King, who, being a man of considerable estate, offered to give Thompson a house and lot in Georgetown, then in a dilapidated state, if Thompson would repair the premises so as to make them a comfortable residence, King say ing he intended the property for his daughter, the wife of Thompson. Thompson accepted the offer, went into pos-, that Thompson's administrator should come in session, and expended in repairs and improvements, four thousand dollars. for an equal dividend with the general creditors. From this order the creditors appealed. About 1816, Thompson claimed to have the Thompson, by his bill to subject the house and property conveyed to him by King, who re- lot, claimed a priority of lien, and had it alfused, but offered to vest the title in trust for lowed to him, in exclusion of the general credThompson's wife. Thompson made several al-itors; he proceeded against the thing, and did ternative propositions, one amongst others that not set up any personal demand extending bethe house and lot should be valued as of the yond the lien, against the other estate of King, date when it was put into his possession, and and we are clearly of opinion none exists. And that he would pay the amount over to King therefore order that so much of the proceeding and take a title; which proposition the latter in the Circuit Court, as allowed the administra accepted, or offered to convey a part of the lot, tor of Thompson to come in with the general including the house, to Thompson, and another creditors of King to receive a dividend founded part to Thompson's wife. Under these circum-on said claim, be reversed, and that the cause stances, Thompson continued to occupy the be remanded for further proceedings. premises for a time, and afterwards removed from, and rented them; King setting up no claim to have the property returned to him. In 1820 he died, and the title descended on his heirs. King, at his death, was largely indebted, say $36,000, and much over the means of payment; his creditors filed a bill to have 131] satisfaction of their demands out of the real as well as personal estate, and the trustee appointed by the Circuit Court to sell the property amongst other lands, sold that claimed by Thompson. The latter filed his bill to avoid the sale, and for a specific performance against King's heirs, the trustees of the creditors, etc., the record in which clause, as reported in 9 Peters's Reports, is, by the exceptions and an agreement, made a part of this proceeding. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, *holden in and for the County of Wash. [*132 ington, and was argued by counsel; on consideration whereof, it is adjudged and decreed by this court, that so much of the decree of the said Circuit Court in this cause as allowed the administrator of Thompson to come in with the general creditors of King, to receive a dividend founded on his claim, be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court. *THE UNITED STATES, Appellant, (*183 V. Appellees. Special land grant in East Florida-deficiency. The creditors denied the existence of the title set up by Thompson, claiming the house and lot as subject to King's debts, and went to issue. The court below decreed specific perform- THE HEIRS OF F. M. ARREDONDO et al., ance, from which the defendants appealed to this court, where the decree below was reversed. But Thompson having an alternative prayer in his bill, claiming priority of the general creditors of King, in the form of a lien on the prop- A concession of thirty-eight thousand acres of erty to the value of the improvements he had land was made in 1817 by the Governor of East Florida to F. M. Arredondo, in consideration of put upon it, this court held that although there services to the crown of Spain. The petition to the was not sufficient evidence to authorize a decree governor, asking for the grant, described the situa for title, still Thompson had, by the rules of tion of the land; and asks, as the survey could not be made for want of surveyors, and the surveyor a court of equity, a lien for the money expend-appointed by the government having other occued on the improvements; and the cause was re-pations could not attend, that the issuing of the manded with a mandate that the property could be obtained; but that in the meantime the title should be suspended until the plot of the land should be advertised and sold, and the proceeds decree of the governor on the petition should serve of the sale be applied, first, to the satisfaction the petitioner as the title. To this application the of the money expended by Thompson in making assent of the governor was given, by a decree orthe improvements, "and the balance, if any, to dering a concession in conformity with the petltion. No survey was made under the concession, be paid over for the benefit of the creditors of while Florida remained under the dominion of King." Spain, or at any time after the cession of the territory to the United States. The court held that want of a survey does not interfere with the title of a grantee. The land granted must be taken as near as may be to place described in the petition, and cannot be taken elsewhere; and if it cannot be The trustee of the creditors of King's estate, found there, the grantee has no claim to an equiv from time to time, made various sales and re- alent; and if it shall be found to interfere with ports; and at April Term, 1837, reported that previous grants to third persons, the concession will be lessened in quantity according to the extent of Alexander Caldwell, the administrator of the rights of third persons and an equivalent for Thompson (then deceased), had presented as a such diminution cannot be surveyed elsewhere. debt due from the estate the balance not reThe acts of Congress for ascertaining claims and titles to lands in Florida, whilst they recognize patfunded to Thompson by the sale of the house ents, grants, concessions, or orders of survey, as and lot. The other creditors resisted the claim evidence of title when lawfully made, do not peras forming no demand on the estate, and in-mlt, in case of a deficiency in the quantity from any sisted Thompson's remedy extended only to the cause whatever, the survey to be extended on other property improved and fixed with the lien, by the decree of the Supreme Court. But the Cir cuit Court overruled the exception, and adjudged The property was accordingly sold, and brought little more than $800, leaving upwards of $3,000 unsatisfied. land. N appeal from the Superior Court of East This case was submitted to the court by Mr. Grundy, the Attorney-General of the United States. Mr. Justice Wayne delivered the opinion of the court: This is an appeal from the Superior Court of East Florida, which confirmed the claim of the appellees to a cession or grant of land, made by the Governor of Florida to Fernando de la Maza Arredondo. The concession was made on the 24th March, 1817, for thirty-eight thousand acres of land, in absolute property, without prejudice to a third party, situated on the two banks of a stream which enters the Suwanee River, called Alligator Creek, beginning at about seven miles west of an Indian town called Alligatortown, situated northwestwardly about forty miles distant from Payrestown, and about eighty miles from Buena Vesta, which parts of the country are known under the name of Alachua. In the petition for this concession, the petitioner asks, in consideration that the situation and then state of the province did not permit the survey and demarcation of the tract to be made, and also the survey could not be made for want of a surveyor-the surveyor appointed by the government having other occupations, which prevented him from repairing to that part of the province he asks the governor to suspend the issuing of the title to the property until the plot of the said tract could be obtained; but in the mean time that the grant which the govern184*] or might be pleased to give him by his decree should serve him as the title thereto; to which the governor responds by declaring that the titles corresponding to the concession will be issued to the petitioner as soon as he shall present the plot made by the surveyor; and in the mean time that his decree shall be "an equivalent thereof in all its parts; of which a certificate shall be given to the petitioners, authenticated in due form, in order that the petitioner may prove said grant, and enjoy the said lands, and dispose of them as he sees fit." The authenticity of the petition and concession is proved by such testimony as this court has always deemed sufficient for such purpose. It appears, also, by documents in the record, which are mentioned in the appellee's petition to the court for the confirmation of this concession or grant, that after the concession was made, the grantee, for a full and valuable consideration, sold and conveyed this tract of land, and the title in fee to the same was vested in Moses E. Levy, one of the appellees in this cause, and that the said Levy did afterwards by indenture, grant, bargain, and sell, by way of exchange for other lands, the one undivided moiety or half part of said lands and its appurtenances, in fee-simple, to Fernando and Joseph de la Maza Arredondo. It does not appear by the record that a survey was made of this concession whilst Florida continued a province of Spain, or that it has been since surveyed. Nor does it appear by any evidence in the cause that the locality of the concession has been definitely ascertained. We do not consider the want of a survey as interfering with the right of the party to the land granted, but it must be taken near as may be as it is described in the petition-where it was asked for, and as it was granted, and cannot be taken elsewhere. If it cannot be found there, the appellees have no claim to an equivalent. Or if, upon the survey, it shall be found to interfere with previous grants to third parties, the concession will be lessened in quantity according to the extent of the rights of third parties, and an equivalent for such diminution cannot be surveyed elsewhere. Such are the terms of the concession, that the land is to be surveyed "in the place where the petitioner designates, without prejudice to a third party." It gives no right to an equivalent or another location, if it cannot be found at or near the place designated. An equivalent is not secured by the concession, in terms, nor is it by the customs or usages of Spain, nor by any law or ordinance of Spain. And it is proper here to remark that the acts of Congress for ascertaining claims and titles to land in Florida, whilst they recognize patents, grants, concessions, or orders of survey, as evidence of title when lawfully made, do not permit, in case of a deficiency in the quantity from any cause whatever, the survey to be extended on other lands. But this concession calls for a natural object, a creek, and is designated as beginning on the creek, about seven miles west of an Indian town called Alligatortown. A survey may then be made so as to give the appellees the benefit of the concession, according to the description. in the petition, supposing that Alligator Creek exists, and that Alligatortown [35 can be found; for, by running a line due west from the centre of the town until it strikes the creek, then extending that line west for a base line of the survey, making the centre of the creek equidistant from its extremities, and then running down the creek on both sides of it, towards the Suwanee, without regard to the windings of the creek, being cut by the downward lines; the concession may be described by survey, so as to answer the description of being on the two banks of the stream or creek. Or, in the event of no such creek existing within or at the distance of seven miles from Alligatortown, or at a reasonable distance over seven miles to the west of it; then, by beginning the survey seven miles west of the town, making a line due west the base of the survey, and running from its extremities towards the Suwanee, or in any other direction; if it shall be found by running them towards the Suwanee the rights of third parties would be interfered with, then the survey of thirty-eight thousand acres could be made so as to give the appellees the benefit of the concession, in accordance with those liberal and equitable principles uniformly applied by this court in the construction of claims to land in Florida, granted before the Treaty with Spain transferring Florida to the United States. If, however, neither Alligator Creek can be found, nor any creek to the west of Alligatortown, entering into the Suwanee, within or at seven miles distance from the town, or a reasonable distance therefrom, and if Alligatortown cannot be found, then it is the opinion of this court that the remaining description in the petition of the locality of the concession is too indefinite to enable a survey to be made, and that the appellees can take nothing under the concession. We have been the more partic ular upon this point, that the mandate which |