CHARLES H. BRYAN, Respondent, v. JOHN SHARP and WILLIAM MOULTON, impleaded with HIRAM H. HACKNEY et al. Appellants, 4 Cal. 349

Mr. Ch. J. Murray delivered the opinion of the Court. Mr. J. Heydeneeldt concurred. The plaintiff filed his bill to enforce a lien claimed by him as the purchaser at Sheriff’s sale of a tract of land owned by the defendant. The facts, as they appear by the finding of the Court, are these: John A. Sutter sold to Hackney &¡ McCullough a tract of land lying in Yuba County, and executed to them a deed, bearing date the 3d of April, 1850. All the purchase money was not paid at the time of sale. On the 9th of January, 1851, Hackney sold to McCullough one-fourth of said land, taking a mortgage upon the same.

On the 27th of January, 1852, McCullough sold the undivided' half of said land to one Sharp, and took a mortgage for the purchase money; and $2,000, or thereabouts, were due upon said mortgage from Sharp to McCullough, at the time of the plaintiff’s purchase. Sutter commenced his action on the 26th of February, 1851, * against Hackney & McCullough, for the remainder of the purchase money, and recovered a judgment against them on the 20th of April, 1852. Execution was issued and levied upon the premises in controversy, and the plaintiff became the purchaser, at the amount of the judgment and costs.

The plaintiff now claims not only the interest of Hackney & McCullough in said land, but the two thousand dollars due from Sharp to McCullough upon said mortgage. It is difficult to see on what ground this claim can be justified. The plaintiff purchased all the right, title and interest of the defendants Hackney '& McCullough, to the said lands. How could this affect any past sale or transfer, so far as the present plaintiff was concerned ? By the sale, he took the property conveyed by Sutter, less the half interest conveyed to Sharp; the other defendants had parted with the legal title by deed to Sharp.

McCullough had no other interest in the property than merely as a security to enforce the payment of the purchase money. It is claimed that Sutter had a vendor’s lien upon the land sold, and that the present plaintiff, as the purchaser at Sheriff’s sale, is substituted to all of Sutter’s rights. It is true Sutter had a lien on the premises; but that lien only gave him the right to look to it for the purchase money. So long as it did not pass into the hands of innocent purchasers without notice, his claim against the defendants was fully satisfied.

The purchaser was not substituted to any new or extraordinary rights, but stands precisely as ordinary purchasers. We do not know of any case in which such a claim has ever been maintained. We are fully of the opinion the plaintiff’s purchase did not carry with it any interest in the mortgage from Sharp to McCullough. The Court should have dismissed the bill for want of equity upon its face; and its refusal to do so, as v'ell as the subsequent proceedings in the case, are erroneous. Judgment reversed with costs Mr. J. Heydenfeldt *On a re-argument of this case, delivered the opinion of the Court. Mr. Ch. J.

Murray and Mr. J. Wells concurred. The plaintiff’s purchase at Sheriff’s sale gave him the rights in the land of the defendants, Hackney and McCullough, and nothiug more. If the purchase money, at Sheriff’s sale, satisfied the claim of Sutter, it made the purchase more valuable to the purchaser, because then Sutter’s claim was paid, and his lien gone; otherwise his lien would still remain. The complainant could not buy at Sheriff’s sale a mortgage; that is only a security for a debt. He could only have bought the equity of redemption. Our attention has been called to a stipulation between the parties.

We have examined it, but cannot see that it can have any effect under the views we have taken. The judgment is reversed, and as the bill has no equity, it must be dismissed.