(Mellen C. J. not sitting in the cause, having formerly been of counsel with the plaintiff,) denied the motion. *299They said that the land having been regularly set off to the creditor at an appraised value, according to the forms of law, his title to it became perfect after the lapse of a year from the extent. The mortgage was intended merely to increase the certainty of payment of the debt; not to place any part of the debtor’s estate out of the reach of the common and ordinary process of law. He might have redeemed the land at any time within the year; and failing so to do, he must be considered, in this as in all other cases, as assenting to the complete alienation of the fee, at the appraised value. Had this extent been a full instead of a partial satisfaction, and the land, by fortuitous circumstances, become of less value, by what process, or with what reason, could the creditor claim of the debtor the deficiency ? Or if, in such case, the land being still in the hands of the creditor, its value should be increased, ought he to be subjected to the action of the debtor for the amount of this increased value ? As, therefore, no action would lie between the parties by reason of any change of value in the land while it remains in possession of the creditor, and as he alone must bear the loss should its value become less, it seems reasonable that he should retain to his own use any surplus of money arising from its sale. Besides, as was observed in the argument, though one parcel of the mortgaged premises was sold for more than its appraised value, yet perhaps the other parcels may produce much less; and thus the creditor may eventually suffer a loss.
They accordingly decreed that the plaintiff' have possession of the premises described in the bill; and execution for the balance of rents and profits remaining in the defendant’s hands up to the time of the decree; agreeably to Stat. 1818. ch. 98. [Revised Statutes ch. 39. sec. 5.]
Note. Tile report assumed the amount of principal anil interest due on the judgment at the time of entry for condition broken, as anew capital carrying-interest ¡ and applied the nett balance of rents and profits annually in extin-guishment of this sum ; to which the counsel made no objection.