The facts ascertained by his Honor and set forth in the decree were that the defendant Stocks being indebted to the plaintiff in the sum of $1,280, by deed dated 6 March, 1824, mortgaged to him a tract of land in Craven Country; that the defendant Wright C. Stanly on 3 May, 1824, purchased a part of the mortgaged premises from the defendant Stocks, on that day received a deed for it with covenants of seizin, warranty and quiet enjoyment, and paid the purchase money to the plaintiff; that the defendant Street on 8 December, 1824, purchased of the (315) defendant Stocks the residue of the mortgaged premises, and on that day received a deed therefor, with covenants of seizin, warranty and quiet enjoyment, and paid the purchase money to the defendant Stocks; that there was due upon the debt secured by the mortgage to the plaintiff the sum of $244.50, with interest. "It was therefore ordered, adjudged, and decreed that the defendant Street within forty days pay to the plaintiff the said sum of $244.50, with the interest thereon, and in default of such payment that the clerk and master sell the lands mentioned in the answer of the defendant Street, and apply the proceeds thereof to the payment of the said sum of $244.50; and in case the proceeds of the said sale should not amount to a sum sufficient to pay the said debt, then that the said clerk and master sell the lands mentioned in the answer of the defendant Wright C. Stanly, and apply the proceeds thereof to the satisfaction of the said mortgage, after deducting therefrom the proceeds of the land mentioned in the answer of the defendant Street."
From this decree the defendant Street appealed to this Court. It is neither alleged, admitted, nor proved that when Street purchased from Stocks he had notice of Wright C. Stanly's *Page 173 prior purchase from him. But it is insisted on behalf of Stanly that notice is entirely unimportant; that it is so only where one party has the legal and the other the equitable interest; that the doctrines founded upon it have no application where both parties have an interest of the same kind, to wit, both legal or both equitable; in such cases priority of acquisition is the rule by which the respective rights of conflicting claimants is determined. For this is cited Jones v. Zollicoffer, so often in this Court. It is true that where two persons claim the same thing, both under a legal or both under an equitable title, the priority of acquisition alone is regarded, and notice is unimportant. Notice is only important where one claims the legal and the other the equitable estate. In this case the parties do not claim the same thing; one claims one part of the land, and the other another part. The equity of (317) Wright C. Stanly is that Stocks should disencumber his lands from the mortgage, and that as between him and the Stocks the whole mortgage debts should be thrown on the residue of the mortgage lands retained by Stocks. This equity is, I think, personal to Stocks, and is not in the nature of a lien on the lands. To affect Street with it he must, when he purchased, have had notice of the obligation imposed on Stocks, for there was no such encumbrance on the land as to affect it in the hands of a bona fide purchaser without notice. Had there been notice, I forbear to say what would have been its effect in this case.
But I think Stanly has another equity, which the case presents. It appears that he paid the purchase money of that part of the mortgaged premises purchased by him to the mortgagee. This was a payment by the land, and as in equity the land is the debtor, it discharged the lien pro tanto from that part which paid it, as to the holders of the other part, and gave the purchaser a right to call upon the mortgagee for all his facilities of enforcing payment out of the other lands, if he, the mortgagee, should levy the balance out of the land thus purchased. For between several purchasers of the mortgaged lands, each one has a right against the others of compelling every part to bear its burden. Wright C. Stanly's purchase has already borne part of the burden. The master will estimate what each part is to pay, according to these principles, taking as his guide the report made by the master of Craven Country as to the amount due, value of each part of the mortgaged lands, and the sum paid by Wright C. Stanly.
PER CURIAM. Decree accordingly.* Cited: Holden v. Strickland, 116 N.C. 198.
* It is proper to say that the case in the court below was decided upon an admission of notice to Street. The Reporter was counsel in that court, and in drafting the decree conceived, erroneously, that the fact was of no importance, and neglected to insert it. *Page 174
(318)