There was no error in overruling the defendants’ demurrer to the plaintiff’s petition. The equity of redemption is not extinguished by the decree of foreclosure, until the decree is executed by sale. The plaintiff, by his purchase between the decrees and the sales under them, became the owner of the right to redeem. If the sales were unfair, the plaintiff and not the estate of Epperson, was wronged. If the sales could be set aside, the plaintiff and not Epperson’s estate had the right to perfect his title by discharging the encumbrances. There was no proof, however, that the sales under the decrees were unfair, and no such issue was submitted to the jury. This branch of the case was, therefore, as unproductive of results injurious to the defendant, as if it had been expunged by demurrer.
The plaintiff’s interest in the land acquired by his purchase at execution sale was not destroyed by the failure of the sheriff to return the execution or to execute a deed. He was the plaintiff in the writ—was not bound to pay any more of his bid than enough to discharge the sheriff’s charges, and for these, the sheriff, in effect, agreed to wait, when he failed to re-advertise the property for sale. In other respects, the plaintiff complied with the terms of sale when he approved the purchase for his benefit. The evidence of the plaintiff’s title, under the judgment, execution and sale, objected to by defendant, was properly admitted, and the issues upon it were fairly submitted to the jury in the charge of the court. The deed of trust to Lawson was properly excluded. The executors were not authorized in Epperson’s will to borrow money, or to raise money, or to mortgage the land. The power to sell did not authorize the execution of the deed of trust. Jones on Mortgages, sec. 129.
The abstract of the Ward judgment ought not have been excluded. The requirement of the statute, that the names of the parties to the judgment shall be stated, was fulfilled. It was not necessary that the character in which the parties were charged should be specified. Any party to be affected by the registration would unavoidably derive his right through the will, and he would thus constructively know that the defendants, named in the abstract, were the executors of the will. The object of the statute is not to encumber the registry with full information, but to excite inquiry, and indicate the source of full information. *44The statute was complied with literally, and what was included in the abstract was sufficient to accomplish the purpose of the law. The statute makes the lien date from the registration and, indexing of the abstract. It does not require the index to be dated. . A certified copy of the index would not show when the lien incepted. The positive proof could only be made by parol. The presumption is that the officer did his duty, and made the index contemporaneously with the registration of the abstract. This presumption is the proof of the party relying on the lien. In this case it was not rebutted.
The deed of trust foreclosed in the Dickson decree appears to have been given by Epperson upon his undivided one-half of the land, at a time when Wright was the owner of the other half. Five-sixths of the whole was encumbered by a vendor’s lien. It appears that Wright and Epperson acquired their moieties at the same time and through the same deeds. There was no proof to show that the one-sixth not encumbered by vendor’s lien was owned exclusively by Wright, or that Epperson’s half interest was entirely embraced in the encumbered five-sixths. On the face of the papers each was the owner of an undivided one-half of the five-sixths encumbered and of the one-sixth ..unencumbered. The Dickson deed of trust covering Epperson’s half embraced, therefore, one-half of the unencumbered one-sixth. The legal effect of the documentary evidence was that the defendant was the owner of five-sixths and one-half of the remaining one-sixth, equaling eleven-twelfths of the whole. In this particular, there was manifest error in the charge and in the verdict.
It does not appear that the Dickson deed of trust was introduced in evidence. If that instrument contained covenants of warranty sufficient to pass an after-acquired title, then, as soon as Epperson became the owner of Wright’s half of the unencumbered one-sixth, that half passed under the deed of trust, and the defendant became the owner of the whole interest.
If the defendant was the owner of the decree foreclosing the vendor’s lien, and of the Dickson decree, and the five-sixths embraced in the former decree was of sufficient value to pay both demands, equity would require that appropriation of the proceeds of the five-sixths, and leave to the plaintiff the other sixth. But a legal sale of the five-sixths is the only measure of its value known either to a court of law or equity. By this measure the five-sixths was not of value sufficient to discharge the first lien upon it. All that was left for the deed of trust was the one-sixth, if the deed of trust contained warranty clauses, or, if it did not, one-half of the one-sixth; and no principle of civilized jurisprudence would subordinate this lien to the plaintiff’s right.*45If the plaintiff had neither constructive nor actual notice of the Dickson deed of trust, or the decree foreclosing it, his rights would not be affected by the deed or the decree. Another trial may eliminate this question of notice. The statute requiring an execution to issue within twelve months to preserve a judgment lien has no reference or application to decrees establishing or foreclosing contract liens. The order of sale under the Dickson decree fully identified that decree, and it was properly admitted in evidence over the objections made to it.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered March 26, 1886.]