orally.—The defendant contends, that the assignee’s license authorized him to sell only the equity of redeeming ) that by the petition and schedules the mortgage is recognized; so that the demandant took subject to the mortgage. To show that the demandant cannot set aside the mortgage and hold the fee, defendant cited 3 Metc. 147. In that case, the officer’s sale recognized the mortgage, and purported to sell only the equity.
In this case, there was no devise of the mortgage to the defendant, and no express reference to -this note. It is well settled that a mortgage does not pass by a transfer merely of the notes.
But what did the assignee sell ? In his deed he expressly avows that he does not intend to sell an equity, but all the defendant’s interest. This was a sale of all the interest which his creditors had in the land. It protected them against the fraud. But, again, what did the assignee sell ? His license embraced more than the equity. The schedule states the land to be under mortgage. But the assignee does not recognize the mortgage : he does not ask leave to sell subject to it. Suppose the debt had been paid, would the equity alone have passed, on the ground that the mortgage was still outstanding? There is a wide difference between the case of an assignee, and of an officer selling on an execution. The officer is a mere instrument. The assignee holds the title. In this case a fair construction does not confine the application and license to the equity merely, but extends to all the defendant’s rights. There, evidence concerning the notes, though objected to, was admissible.
The jury have found there was no valid note. There was then no equity of redeeming. The fee was in the assignee, and the purchasers under him took it.
Defendant further objects to a want of evidence, that, in malting the sale, the assignee complied with the statute re*203quirement of notices, and has compared them with the requisites in sales for taxes. But the cases are unlike. The tax collector has no interest in the property; is a mere organ ; whereas the title is wholly vested in the assignee. The bankrupt Act, sect. 15, dispenses with evidence of notice, except in the recitals of the deed; and though in the first part of the section there seems some limitation to the effect of the recitals, the last part of it declares them sufficient for establishing the title. Judgment on the verdict.