demption only, and whether the sale is to the mortgagee or to a stranger, it is presumed that the bid made is for the property over and above the mortgage; that if the sale is made expressly not subject to the mortgage, the mortgage debt is extinguished; and, where it is not so subject, the mortgagor may restrain the mortgagee "from proceeding to sell other property until he shall have done what equity requires, which will be to credit on his debt what he ought to credit in view of his purchase of the property under the circumstances." 282 But in those states where the mortgagee is not allowed to levy upon and sell the mortgaged premises under a judgment at law for the mortgage debt, the prohibition is not applicable, when, after the execution of the mortgage, the mortgagor has executed a second mortgage, including the mortgaged premises and other real property. In that event, the first mortgagee may, upon execution, have his debt levied upon the equity of redemption of the mortgagor in both parcels. This is because, upon the making of the first mortgage, the mortgagee had a right, upon a judgment for the mortgage debt, to levy upon any property of the mortgagee not included in the first mortgage, and of this right the mortgagee could not be deprived by the execution of a second mortgage. Especially is this true where, by the law of the state, if a mortgage exists against two or more parcels of real property, there is no procedure "by which the equity of redeeming one of the parcels only can be sold." 283 A mortgagee may levy upon and sell the mortgaged premises upon an execution for a debt distinct from 282 Lydecker v. Bogert, 38 N. J. Eq. 136. 283 Johnson v. Stevens, 7 Cush. 431. 284 that secured by the mortgage. A mortgage may be made to secure two or more negotiable notes. In this event, the indorsee of any of these notes may bring an action at law thereon against the mortgagor, and may sell his equity of redemption in satisfaction of the judgment.285 If, however, the mortgagee assigns the mortgage to the indorsee of the note, he becomes substituted to the disability of the mortgagee, and cannot sell the equity of redemption under a judgment at law for a part of the mortgage debt.286 A mortgagee may, in Massachusetts, sell, under a judgment for his debt, the mortgagor's equity of redemption in a second or junior mortgage.287 In Oregon, the levy upon and sale of the mortgaged premises under a judgment at law for the mortgaged debt are not void.288 Whether such sale is voidable by some motion or proceeding taken in the interest of the mortgagor was not determined. § 192. Interest of Grantor and Grantee of a Deed Intended as a Mortgage. There are various conveyances which, though not mortgages in form, are nevertheless designed to accomplish the same purpose. The question arises, whether the grantor in such a conveyance retains an interest subject to execution, in those states where, though equitable titles are exempt, the interests of mortgagors are liable to execution. In Ohio and Alabama it has been held that the grantor in a deed of trust has no estate vendible under an execution at 284 Cushing v. Hurd, 4 Pick. 253, 16 Am. Dec. 335. 285 Crane v. March, 4 Pick. 131, 16 Am. Dec. 329; Andrews v. Fiske, 101 Mass. 422. 286 Washburn v. Goodwin, 17 Pick. 137. 287 Johnson v. Stevens, 7 Cush. 431. 288 Matthews v. Eddy, 4 Or. 225. law.289 So in Ohio and Georgia, if a deed absolute on its face is given and accepted as a mortgage, the grantor's interest cannot be levied upon at law." In the latter state provision has recently been made for levying upon the interest of the grantee in such a deed in a manner which will hereinafter be stated.201 290 The interest of a mortgagee is, as we have hereinbefore shown, not subject to execution as real property. Upon principle the same rule must apply to the grantee of a conveyance made and accepted as security for a debt. The supreme court of Georgia, however, nevertheless determined that the interest of such a grantee was like that of the vendor of property who has not conveyed it, and is under no obligation to do so until paid the balance remaining due on the purchase price; and, hence, that the interest of such a grantee is subject to execution, the purchaser at the sale, if charged with notice of the purpose of the conveyance, taking the right to hold the title until paid the debt.202 But the more reasonable rule under such circumstances is, that the creditors of the parties are not entitled to treat their relation as other than that of mortgagor and mortgagee; and, therefore, that they may levy an execution against the former, and not against the latter 293 289 Morris v. Way, 16 Ohio, 469; Thompson v. Thornton, 21 Ala. 808; Lipe v. Mitchell, 2 Yerg. 400. 290 Baird v. Kirtland, 8 Ohio, 21; Loring v. Melendy, 11 Ohio. 355; Phinizy v. Clark, 62 Ga. 623; Groves v. Williams, 69 Ga. 614; McCalla v. American etc. M. Co., 90 Ga. 113. 293 Fredericks v. Corcoran, 100 Pa. St. 413; Clark v. Watson, 141 Mass. 248; Newhall v. Burt, 7 Pick. 156; Second Ward Bank v. Upmann, 12 Wis. 499. VOL. II.-63 § 193. A Purchaser at an Execution Sale "obtains an inchoate right, which may be enlarged into a perfect title, without any further act than the execution of a deed, in pursuance of a sale already made. It is not a mere right to have a certain sum charged upon the property satisfied out of it. The sum before charged upon the land has already been satisfied by the sale to the extent of the amount bid by the purchaser. The purchaser has already bought the land and paid for it. The sale is simply a conditional one, which may be defeated by the payment of a certain sum, by certain designated parties, within a certain limited time. If not paid within the time, the right to a conveyance becomes absolute, without any further sale, or other act to be performed by anybody. The purchaser acquires an equitable estate in the lands, conditioned, it is true, but which may become absolute by simple lapse of time, without the performance of the only condition which can defeat the purchase. The legal title remains in the judgment debtor, with the further right in him, and his creditors having subsequent liens to defeat the operation of a sale already made during a period of six months; after which, the equitable estate acquired by the purchaser becomes absolute and indefeasible, and the mere dry, naked, legal title remains in the judgment debtor, with authority in the sheriff to divest it, by executing a deed to the purchaser.” 294 Because, by a sale under execution, the purchaser acquires, even before the expiration of the time for redemption, an inchoate, inceptive title to the lands sold, and because the sheriff's deed, when made, takes effect by relation as of the day of the sale, the purchaser's 294 Page v. Rogers, 31 Cal. 301. title has, in California, New York, and Pennsylvania, been held to be subject to execution.295 So it is said that the estate of a tenant by elegit is subject to execution in England.296 But in Illinois, Maine, Ohio, and New Jersey, one who derives title under an execution has no interest subject to levy until the time for redemption has expired, although, in the first-named state, he has by law a perfect legal title, and not a mere equity—this legal title being defeasible on payment of the sum required to make redemption.297 § 194. The Interest Held under a Contract to purchase, with an agreement for a conveyance when the terms of the sale have been complied with, is, of course, a mere equity, and upon common-law principles is not subject to execution. Prior to the statute of 29 Charles II., it would have been immaterial to inquire whether the vendee had fully complied with the terms of his agreement, and become entitled to a conveyance, or not; for, as long as the legal title remained in the vendor, there was no interest in the vendee subject to execution. Under the construction given to this and to similar statutes, the vendee who had made full payment, and was entitled to an immediate conveyance, was regarded as a cestui que trust, for whom and to whose use the vendor was seized. Hence, the interest of such vendee was held to be liable to levy and sale at law.298 The same rule has been maintained where the 295 Page v. Rogers, 31 Cal. 301; Wright v. Douglass, 2 N. Y. 373; Slater's Appeal, 28 Pa. St. 169; Morrison v. Wurtz, 7 Watts, 437; Whiting v. Butler. 29 Mich. 129. 296 Watson on Sheriffs, 208. 297 Den v. Steelman, 5 Halst. 193; Gorrell v. Kelsey. 40 Ohio St. 117; Kidder v. Orcutt, 40 Me. 589; Bowman v. People, 82 Ill. 246, 25 Am. Rep. 316. 298 Morgan v. Bouse, 53 Mo. 219; Thompson v. Wheatley, 5 Smedes |