The decree was resisted upon two grounds:
1. That the title to a part of the land had turned out to be bad, and that the plaintiffs had, by the agreement for the sale, bound themselves to a general warranty, but in executing the deed had imposed upon the purchaser by a clause of special warranty only.
2. That the bonds were good when they were passed to the plaintiffs, and had been lost by the negligence of the mortgagees, or their indulgence to the debtors.
Upon the first point no evidence was filed by the defendants. But the plaintiffs proved, by the deposition of William Blackledge, that the deed was in strict conformity to the agreement for a purchase. Upon the second point evidence was filed by both parties, but at present it is not necessary to state it. *Page 243 The Court does not decide the second point in this stage of the case. Upon a bill to redeem or foreclose, when the mortgage is established, unless the parties agree to a decree upon the answer, it is the established law of the Court that a reference to the master, to ascertain what is due on the foot of the mortgage, is of course, upon the motion of either party. The Court, therefore, does not enter upon the question of the solvency of the obligors in the bonds transferred, or of the laches of the plaintiffs. Those matters will come up when the report comes in. They properly belong to the accounts to be taken, and it might be a surprise to both parties to enter into them now, as they may not have prepared their testimony to those points, expecting to offer it before the master. The usual reference is, therefore, ordered.
PER CURIAM. Declare that the conveyance made to the (420) defendant Nelson, with a covenant of special warranty only, conforms to the agreement of the parties, and decree that the plaintiffs are barred of relief by reason of any defect of title in a part of the land conveyed by them to Nelson, if such defect exists, and direct an account of what is due the plaintiffs for principal and interest on the mortgage, including such costs as they have necessarily incurred in prosecuting suits on the bonds assigned by the defendant Nelson to them.