On Rehearing.
Reeves, Associate Justice.After a careful examination of the record and briefs of counsel in this cause, no sufficient reason, as we think, is shown why the motion for a rehearing should be granted.
The land purchased by Dibrell at sheriff’s sale on the judgment and execution in favor of. himself and C. C. Dibrell against Erskine is subject to the payment of Erskine’s note to Smith. Dibrell by his purchase took it subject to the 'debt, and the decree should be rendered so as to make Erskine’s part of the land purchased by Dibrell at sheriff’s sale liable to the extent of satisfying Erskine’s note, without a personal judgment against Dibrell for its payment.
Dibrell, having purchased under an execution in favor of himself, with notice that the note was unpaid, cannot be regarded as a purchaser who has advanced a valuable consideration on the faith of his purchase. The note in *450question was given long after the execution of the mortgage by St. Clair to Smith, and could not be merged in it.
Erskine and Dibrell were bound for the payment of the whole [purchase money before it was agreed to look to each for his share of one-half.
Erskine testifies that nothing was said about a lien at the time he gave his note. Smith says Dibrell told him that the land would be bound for all the unpaid purchase money.
As the case will be reversed and remanded, the parties will have the opportunity of offering further proof on the question, if desired.
Motion refused.
Judge Peter W. Gray resigned April 18, 1874.