Foster against Fox, 4 Watts & Serg. 92

The opinion of the Court was delivered by Gibson, C. J. — It seems to have been a predominant idea in the mind of the judge, that Benedict was not incidentally entitled to the judgment for the land as an accessory of the debt; and that as he had not specially stipulated for it, he was not entitled to it at all. But the principle of equity that the purchaser of a debt is a purchaser of all the creditor’s securities for it, is settled by many decisions ; and it would be glaringly unjust to apply any other to the case under consideration.

Foster had recovered in ejectment to enforce the payment of purchase money which Fox owed for the land; and it is no matter that the verdict was not conditional, or to be released on payment of a designated sum: as a security, the judgment was not the less operative for that. The claim to the residue of the purchase money, for which Foster appears to have had no other security, was purchased by Benedict; and what would the ownership of it have availed him without the judgment as a means to enforce it ? The drift of the argument is to prove that he paid his money for a shadow without the substance.

It was admitted by the judge that the purchase gave him a right against the person of Pox; but it would be a right without a remedy, which is, in effect, no right at all. The law however is not so absurd as to leave Benedict in that predicament. By purchasing the debt, he purchased, even without a special stipulation for it, the means to enforce it.

It is not pretended by Foster that the judgment was excepted at the time of the purchase; nor would it be material that it had' been so, for the accessory would have followed its principal, from which it is inseparable, by operation of the law, which Foster would have been unable to control. The judgment continued to exist for some purpose after the debt secured by it had been transferred; and if Benedict could not enforce it, who else could? If it existed at all, it was for his use alone.

It was not formally transferred to him, because it was supposed, both by him and by Foster, that the purchase money was a lien on the land and would come out of the price of it when it should be sold on Benedict’s own judgment, or on the younger judgment of Stratton. It would be a reproach to the law if this common mistake, which imposed an additional obligation on Foster to repair the consequences of it, should cost Benedict the debt and the price of it. But Foster, instead of assigning the judgment when the mistake was discovered, did what ?

Conveyed the legal title to the land remaining in him, to Stratton, with a view to prefer Stratton’s judgment to this very debt for which Foster had received value from Benedict! The best of it is, that Benedict can do without his assignment; for, as was said in Fleming v. Beaver, (2 Rawle 132), the right of substitution is everything, and actual substitution nothing: and his conveyance of the title is, for any purpose beneficial to Stratton, absolutely worthless.

The court is bound to let Benedict mark the judgment to his use or control its direction; and as Foster became his trustee, not only of the judgment but the title also, Stratton, who purchased with notice or without a valuable consideration, took the title as a trustee in his stead. Benedict therefore has the same right to have the judgment revived to his use, that Foster had before he sold the debt. It is true, as the jury were directed, that he is not entitled to have a conditional verdict for a specific sum.

Our peculiar practice, which, in other cases, makes a judgment of revival a judgment of recovery, and not an award of execution merely, has not been extended to a scire facias on a judgment in ejectment; nor could it be, for the original judgment is not for money but for land. The proper judgment in this case, will enable Benedict to turn Stratton out of possession and hold the land till he has received the residue of its price; and when that is done, Stratton may regain the possession.

The bills of exceptions to evidence, lose the’ir importance by this decision of the ruling point; and the subordinate points were either irrelevant or properly decided. Judgment reversed, and a venire de novo awarded.