concurring.
While I concur in a judgment of reversal, I must say that-it is not without some doubt and misgiving. The simple view which I take of the case is this: After the contract of sale-by Baker to Iverson, Baker held the legal title to the land as security for the balance of the purchase money. The-judgment, at the instance of Ware against Baker, bound the legal estate of Baker in the land, which was not parted with at the time of the rendition of the judgment. The Sheriff'sTendee would stand precisely in the situation of Baker; and therefore, it was incumbent on Iverson, as it is of every purphaser from a judgment debtor, to search the office before payment of his money in 1848, and see whether, in the mean-time, no lien against Baker had attached upon the land: because, in that event, Baker could not consummate the contract nor Iverson acquire an indefeasible title. Iverson bought in 1845, paid $500, gave his note for $600, and took a bond for titles. In 1846, Ware obtained judgment against-Baker. Suppose Baker, after that, had sued Iverson for the-$600 — might not Iverson have prevented a recovery by pleading this outstanding incumbrance ? ' If so, it is clear that Iverson could not, by making voluntary payment of his note, -defeat the judgment lien of Ware. Had the note been trans*458ferred by Raker for a valuable consideration, to a bona fide' holder, the case would liave been different.
I stated in Wilkinson vs. Burr, (10 Ga. R. 117,) that a. purchaser under a judgment against either vendor or vendee,, like a purchaser from either by voluntary conveyance, succeeded only to the interest which the debtor had to incumber or part with, and no more nor no less. The purchaser in the one case, whether at private or public sale, being entitled to call for the balance of the purchase money, as the representative of the vendor, and the other being entitled to call for a conveyance, as the representative of the vendee, upon paying up what was due; that it was not land, but the debtor’s-interest in it, whether he be vender or vendee, -that is sold,, leaving the residue untouched. I see no reason to change ■ that opinion — that the purchaser’s interest as well as the-seller’s, will be bound by a judgment. See Dart’s Vendors and Purchasers of Beal Estate, 115 and 119.
. It is argued that this case is precisely the same as thouglr Baker, in 1845, had executed a deed to Iverson and taken a. mortgage from his grantee to secure the payment of the purchase money. And it is analogised to the case of Jackson ex dem. Norton & Burt, against Willard, (4 Johns. R. 41,) where it was held, that lands mortgaged cannot be sold on an execution against the mortgagee, before a foreclosure of the equity of redemption, though the debt be due, and the-estate of the mortgagee has become absolute at law.
I leave this and all the other intricate questions involved in this record, to bo discussed at length by my ally and our dissenting brother, both of whom, I am sure, are fully prepared for the work. One conclusion is fairly deducible from this argument, and especially from the New York case just cited, namely: that the position taken by this Court, at an early day after its organization, that a mortgage is nót an estate in fee, but a mere security for a debt, is abundantly sustained, both upon reason and English, as well as American authority.