This is an action of ejectment. Judgment went for defendant, from which, and from the order denying motion for new trial, plaintiff appealed.
On the first of January, 1850, one Laskie was the owner of the premises in controversy. On the second of October, 1850, Laskie, for the purpose of securing the payment, on or before January 15, 1851, of a promissory note for five hundred dollars and interest, executed to one Matthews a mortgage of said premises, which mortgage contained a clause, that in case of failure in the payment of the money secured, said Laskie constituted said Matthews his attorney in fact, with power and authority to sell the mortgaged premises, at public auction, to the highest bidder, for cash, on giving notice as prescribed, and “to execute, deliver and acknowledge a proper and sufficient deed or deeds of conveyance, in his name, as his attorney in fact, to the purchaser or purchasers.” June 11,1851, said Matthews, in his own name as grantor, for the consideration named of four hundred dollars executed to James Hall a quitclaim deed of the premises. In this deed no reference was made to the mortgage or to the power therein contained, nor to Laskie. In 1861 the defendant, Boyd, purchased from Matthews the promissory note and mortgage, and brought an action for the foreclosure of the mortgage, in which .action such proceedings were had that a *446decree of foreclosure and sale was made, a sale was had and a deed thereunder executed to Boyd. Laskie, Matthews, and others (not including James Hall' or plaintiff), were made defendants in this action. Upon the sale a deficiency existed, for which judgment was docketed, and a sale on execution was had of the premises to one Turney, who conveyed to defendant Boyd.
These proceedings on the foreclosure and sales occurred during the years 1861,1862, and 1863. In 1876 the plaintiff herein, William Hall, commenced an action against said Henry Matthews and the defendant Boyd, alleging the execution of the note and mortgage before mentioned, from Laslde to Matthews, its non-payment, the sale by Matthews to James Hall for four hundred dollars, which amount satisfied the debt from Laskie to Matthews; that in executing the deed from Matthews to Hall, Matthews did not comply with the terms and conditions of the power of sale, and that the deed was not sufficient to convey the title to said James Hall; that James Hall had died, leaving plaintiff, Wm. Hall, his sole surviving heir at law; also, alleging a pretended assignment and transfer of the mortgage and possession of the premises by Boyd under foreclosure proceedings based on such mortgage and assignment; and praying that Matthews execute to said Wm. Hall a proper deed under said power, and that the pretended assignment from Laskie to Boyd he annulled, etc. This action was subsequently dismissed as to Boyd, but such proceedings were had that judgment was rendered against Matthews, a Commissioner was directed to execute a deed, and a deed was executed accordingly.
From the facts presented to us, the judgment of the Court below was correct. The defendant, Boyd, was not a party to the judgment rendered in the action brought by the plaintiff herein against Matthews, and is not hound thereby. It does not appear, other than by the judgment in that action, that James Hall is deceased, or that the plaintiff is his heir, or that the note and mortgage executed by Laskie to Matthews were paid out of the proceeds of the sale from Matthews to James Hall or otherwise, James Hall took nothing (as against Laskie) by the deed to him from Matthews; the grantor named in that deed had no legal estate to convey; he did not assume *447or pretend to act under the mortgage or the power therein contained; the power was, expressly, that he might convey in the name of, and as attorney in fact of Laskie, and no attempt was made to act in that way or in that capacity. It is true that Matthews had a power, coupled with an interest, but that power was to act as an attorney in fact, and the interest was that he might by acting as such attorney accomplish the payment of his debt. Neither was the deed an assignment or extinguishment of the debt referred to in the note and mortgage; but the debt and security remained in Matthews, and were by him assigned to Boyd, who became the owner thereof and by the foreclosure proceedings acquired the title to the premises.
Judgment and order affirmed.
Thornton and Sharpstein, JJ,, concurred.