The following opinion, on the motion of Charles S. Coxe, was delivered by
Woodward, C. J.The executor of the mortgagee of Martin asks to have the decree opened, and himself admitted to defend against the plaintiff’s bill, on the ground that the mortgagee was not made a party to the proceeding that has been had, and that the decree was founded on a mistake of fact. The mistake consisted in Judge Lowrie’s assumption that Alexander Henry was the owner of both lots (Clark’s and Martin’s) in 1814, when he conveyed the Martin lot subject to the restriction in question; whereas, in point of fact, he had only a life estate in said lots.
Granting the mistake, it is impossible for us to invest it with the importance claimed for it, since it is part of the case that Henry’s title was perfected by subsequent conveyances of the remainder-men to him. These conveyances enured, necessarily, to the benefit of his alienees, and thus Martin acquired a title in fee simple, subject only to the restriction. It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration, when he has less than a fee simple, but after-wards acquires the fee, holds it in trust for his vendee, and will be decreed to convey it to his use, and equally clear is it that if a vendee mortgage his title, the perfection of the title by the vendor enures to the benefit of the mortgagee: Brown v. McCormick, 10 Watts 60; Tyson v. Passmore, 2 Barr 122. A judgment or decree against the vendee that affects the title will bind the mortgagee no less than the mortgagor.
Then why open this decree to admit the mortgagee? He can have no rights in the premises superior to those that were vested in his mortgagor, and if he had had notice of the proceeding he could no more, have been admitted to defend than any other creditor of Martin. If the decree concludes Martin it concludes his mortgagee.
And, beyond question, Martin is concluded, for the mistake, if indeed taking the whole opinion together it can be considered a mistake, was not such as to entitle him to a rehearing, and much less his mortgagee.
The application of the executor must therefore be refused, and his petition be dismissed.
Same day defendant’s appeal from the order of the judge at Nisi Prius refusing to rescind the order allowing the complainant to issue writs of assistance and fi. fa. for costs, was dismissed, and the order affirmed.