The facts of this case are *210so fully and clearly stated in the decree of the Circuit Judge as to supersede the necessity of any restatement of them here. This decree, together with the exceptions thereto, should, therefore, be incorporated in the report of this case. The defendant has also given notice, according to the proper practice, that he will urge that the decree appealed from should be sustained upon an additional ground stated in such notice, which should likewise be incorporated in the report of this case. The exceptions, though quite numerous, raise, substantially, only the following general questions: 1st. Whether the present plaintiff can maintain this action? 2d. Whether the amount of the rents and profits received by Wm. B. Elkin, during the time he was in possession of the land covered by the mortgage given to secure the payment of the bond, which constitutes the basis of the present action, should be applied as a credit on such mortgage debt?
As to the first question, it appears in this case that Samuel B. Clowney, the predecessor in office of the present plaintiff, brought an action against Wm. B. Elkin, as administrator of Henry W. Parr, and the present defendant, .Henry E. Parr, as the sole heir at law of said Henry W. Parr, for foreclosure and sale of the premises covered by the mortgage given to secure the payment of the bond which constitutes the basis of the present action, in which action judgment for foreclosure and sale was obtained; and that under said judgment the land, now sought to be subjected to the payment of the said bond, was offered for sale by the sheriff of Eairfield County, and bid off by said Wm. B. Elkin, on the 3d day of December, 1877, who weritxinto possession and retained the same up to the time of his death, in April, 1890, titles having been made to said Wm. B. Elkin, as trustee, by the sheriff on the day of sale, “in trust for the said Wm. B. Elkin and Mary A. Elkin and Judith W. Ruff, subject to and in accordance with the provisions, conditions, and limitations contained in the last will and testament of James Elkin, deceased.” In this transaction *211no money passed, but the amount of the bid, $1,995, was credited on the judgment — the parties for whose benefit the purchase was made being the real parties in interest — and execution was issued for the deficiency, which was returned “satisfied.” Subsequent to the death of said Wm. B. Elkin, the said Mary A. Elkin and Judith W. Ruff both being then dead, an action was brought by some of the issue of said Judith W. Ruff, against others of her issue, and against the issue of said Mary A. Elkin, for the partition of the land bought by Wm. B. Elkin, as trustee as aforesaid, under the Clowney judgment, which they claimed under said purchase. To that action the present defendant, Henry E. Parr, was also made a party defendant, under the allegation that he had taken wrongful possession of the said land soon after the death of Wm. B. Elkin, and unlawfully detains the same from the plaintiffs and the other defendants. In that action it was adjudged that the said Henry E. Parr had never been lawfully divested of his title to the said land because he had never been made a party to the action brought by Clowney, as clerk, for the foreclosure, and hence that the plaintiffs and the other defendants were not entitled to partition of said land. See Ruff v. Elkin, 40 S. C., 69. Thereupon the present action was commenced by R. H. Jennings, as clerk and successor in office of the said Clowney, tb subject the land called the Montgomery tract— which had been bid off by Wm. B. Elkin, as trustee, under the Clowney judgment, but now in the possession of the-defendant, Henry E. Parr, as heir at law of the said Henry W. Parr — to the payment of the bond secured by the mortgage which had been foreclosed in the action brought by Clowney, as predecessor in office of the present plaintiff. While it is true that it has been adjudged, in Ruff v. Elkin, supra, that Wm. B. Elkin, as trustee, took no title to the land under the sale made by virtue of the Clowney judgment, yet the Circuit Judge held that the effect of that sale was to transfer the bond and mortgage to the purchaser, Wm. B. Elkin, as trustee, who thereby became the equitable *212assignee of the bond and mortgage, and that Clowney, thus having parted with his entire interest in the bond and mortgage, the present plaintiff, as his successor, has no right to bring this action. This ruling was based upon the well settled doctrine, that a purchaser of land at a judicial sale, though he may acquire no title to the land, becomes the assignee of the bond and mortgage, and succeeds to all the rights of the mortgagee, and is subject to all liabilities of the mortgagee. This doctrine has been explicitly recognized and applied in at least three cases in this State—Stoney v. Shultz, 1 Hill Ch., at page 499; Givins v. Carroll, 40 S. C., at page 416; and Williams v. Washington, 40 S. C., at p. 461. The same doctrine has also been recognized by the Supreme Court of the United States in Brobst v. Brock, 10 Wall., at page 534; Davis v. Gaines, 104 U. S., at page 406, and in the very recent case of Bryan v. Brasius, 162 U. S., 415. It is contended, however, by appellants, that the defendant is precluded from taking the foregoing position in this case for the following reasons: 1st. Because, by his answer, he has admitted expressly the allegation in the complaint that the plaintiff is “the legal owner and holder of said bond.” It will be observed that the doctrine above stated is based not upon the idea that the sale operated as a formal, legal transfer of the bond and mortgage, but that the effect, in equity, was to assign the bond and mortgage. While, therefore, it may be true, that the plaintiff was the legal owner and holder of said bond, he was not the eqtiitable owner, and had no right to enforce the same. 2d. That Clo.wney had no authority to assign the bond and mortgage. This is answered by the statement that the assignment resulted by operation of law, and not by the act of the parties. 3d. It is contended that this objection should have been taken by demurrer, and not having been so taken, must be regarded as waived. But the complaint does not allege that any sale was made under the Clowney judgment — it only alleges the recovery of such judgment. Hence there was no ground for a demurrer— *213and the fact of the sale was alleged in the answer', and from that fact the legal conclusion is drawn that Clowney had thereby parted with his entire interest in the bond and mortgage, and the same had, by operation of law, become vested in the purchaser, who thereby became the mortgagee.
If, therefore, as we have seen, Wm. B. Bikin, as trustee, by reason of his purchase at the sale made under the Clow-uey judgment, must be regarded as the assignee of the bond and mortgage upon which that judgment was obtained, he must, upon well-settled principles, account for the rents and profits of the land, as mortgagee in possession, from the time he took possession, on the 3d of December, 1877, up to the time of his death, in April, 1890 — a period of more than twelve years — before either he or those who claim under him can claim anything on the bond secured by the mortgage. And if, as the Circuit Judge finds, such rents and profits amounted to a sum more than sufficient to extinguish the bond, then clearly the plaintiff could in nq view of the case recover. We do not understand that this particular finding of fact is excepted to; for while there are some exceptions to other credits claimed by the defendant, to wit: the amount of the Murphy purchase, and the amount collected on the execution for deficiency, and the amounts received for cord wood and crossties, we do not find any exception to the finding that the amounts received for rents was more than sufficient to pay the entire bond and interest. But, even if excepted to, we think the finding of the Circuit Judge is fully sustained by the testimony. It is contended, however, by appellants, that the rents and profits received by Wm. B. Bikin should not be credited on the bond, for several reasons. 1st. Because they say there was no evidence to show that Mary Ann Bikin and Judith W. Ruff were joint purchasers with Wm. B. Elkin of the land bid off by him at the'sale under the Clowney judgment, and, on the contrary, that the sheriff’s book shows that he was the sole purchaser. A complete answer to this position will be found in the terms of the deed made to Elkin, as *214trustee, by the sheriff, Silas W. Ruff, a son of Judith W. Ruff, by which the laud is conveyed to “the said William B. Blkin, as trustee, his successors in trust, nevertheless, and to and for the following uses and purposes, that is to say: in trust for the said William B. Blkin and Mary A. Blkin and Judith W. Ruff, subject to and in accordance with the provisions, conditions, and limitations contained in the last will and testament of James Blkin, deceased.” It must be assumed that the terms of this deed were known to and acquiesced in by the said Mary A. Blkin and Judith W. Ruff, and hence neither they nor their issue, who claim under them, are in a condition to deny such trust relation to the said Wm. B. Blkin. In addition to this, the said issue, in their action for partition, above referred to, not only expressly recognized this deed, but based their claim for partition upon its terms. 2d. The counsel for appellants contends that the issue of the said Mary A. Blkin and Judith W. Ruff do not claim through or under those two ladies, but that they take as purchasers under the terms of the devise contained in the will of James Blkin, and hence they are not to be affected by any trust relation between Wm. B. Blkin and Mary A. Blkin and Judith W. Ruff, if any such relation existed. We are not able to accept this view, and, on the contrary, are of opinion that the authorities cited in respondent’s argument are quite sufficient to show that the said issue do not take as purchasers under the will of James Blkin, but that they take by inheritance from their respective ancestors. But we do not deem it necessary to pursue the inquiry further as to how the said issue take; for, under the view which will next be presented, it is immaterial whether any trust relation existed either between Wm. B. Blkin and Mary A. Blkin and Judith W. Ruff, or between Wm. B. Blkin and the issue of those two ladies.
According to our view, the true theory of the case is, as we have shown above, that Wm. B. Blkin, by virtue of his purchase at the sheriff’s sale, though he acquired no title to *215the land, yet he thereby became the equitable assignee of the bond'and mortgage, and that when he took possession of the land under that sale, he did so as mortgagee, and as such became liable to account to the mortgagor, and to the defendant, Henry E. Parr, who claims under such mortgagor, as heir at law, for the rents and profits of the land of which he has thus taken possession. If, therefore, the amount of the rents and profits received by the mortgagee, while in possession of the lands, proved to be more than sufficient to pay the mortgage debt, as we have seen was the fact, the result is, not only that the lien of the mortgage has been discharged, but also that the debt secured by such mortgage has been extinguished by actual payment derived from the property of the defendant, Henry E. Parr. Hence it follows that no action can be maintained, in any form, for the recovery of a debt which has been actually paid. The position taken in the thirteenth exception, that because Wm. B. Elkin happened to be the guardian of Henry E. Parr at the time he went into possession of the land, he must be held to have received the rents and profits as such guardian, manifestly cannot be sustained, because there is nothing whatever in the case upon which even a pretense could be founded, that he took possession of the land as guardian; on the contrary, all the proceedings conclusively show that his possession was adverse to the rights of Henry E. Parr, and that position was stoutly contended for by the very same parties for whose benefit the present action was instituted in the case of Ruff v. Elkin, supra.
The other exceptions require no special notice further than to say that they are all overruled Under our view, it becomes unnecessary to consider the additional grounds for affirmance, urged by respondent.
The judgment of this Court should be, that the judgment of the Circuit Court be affirmed.