By the Court The claim for the alleged surplus on the purchase of the mortgaged premises by Lowitz, is disposed of by the decision of this court in the case of Whitney vs. Bidwell, arguedatthe July Term,1860, (ante p.76.) The counselfor thePlaintiff in error, however, urges, that as his mortgage is of a date prior to that of the Defendant Lowitz, he is entitled under the general prayer for relief, to a judgment declaring his lien prior to that of the Defendant Lowitz, unless the latter is a purchaser in good faith and for a valuable consideration. It appears from the complaint that the conveyance to Lowitz was for a valuable consideration, and whether it be necessary for the Defendant, when such fact appears, to assume the burden of proof in showing that it was also in good faith, it is unnecessary in this case to determine, as the Plaintiff not only mates no allegation that the conveyance was not in good faith, but expressly states or admits in the complaint, that the lien of the Plaintiff in error is subsequent to that of the Defendant Lowitz. Under such a showing of the complaint,,, it will scarcely be seriously urged, that the court should place the lien of the Plaintiff in a better position, than he has himself claimed for it.
The Plaintiff in his prayer for relief asts, that “ in case the said Lute Marvin or any other person shall redeem the said premises from said sale within the time allowed by law for such redemption, that then and in such case, the Plaintiff may have the usual decree of a judgment for the sale of the said mortgaged premises under and by virtue of the mortgage herein first set forth,” etc. The objection to granting this relief is, that the Plaintiff does not show a state of facts, calling for the interposition of the court in any manner. The relief prayed for is of an equitable nature, but the facts stated in the complaint are insufficient to support the decree demanded. It shows the legal title of the premises in question in Lowitz, with only an equity of redemption in Marvin, and complains of no present injury suffered by the Plaintiff, nor avers any meditated or threatened wrong, or probable ground of possible *528injury, for which he asks the protection of the court. “An original bill praying relief is founded upon some right claimed by the party Plaintiff, in opposition to some right claimed, or wrong done by the party Defendant.” Story’s Equity Plead. Sec. 23. In the case at bar it does not appear that the Defendants claim any right in opposition to the Plaintiff, or have done or threatened any wrong to his rights or interests. The Plaintiff as second mortgagee, has the right under the statute, of redemption from Lowitz, and thus securing the legal title to the premises. Or if Marvin redeems, the first mortgage is satisfied, leaving that of the Plaintiff the first lien on the premises. But to grant a decree of foreclosure, conditional upon the exercise of the right of redemption by the mortgagor, is a practice which does not seem to be sanctioned by any rule of equity, or any authority which has fallen under our notice.
The judgment.below is affirmed.
Chief Justice Emmett dissents.