The plaintiff held the legal estate as a security *64for tbe unpaid part of the purchase money, and upon such payment in trust for the defendant, he was entitled to his debt and to nothing more. If the defendant alone had assigned her estate to Wyatt & Wynne, they could have compelled the plaintiff to convey to them on the payment of what defendant owed him. If Wyatt & Wynne had paid the defendant $20,000 for her estate, the whole excess over the-unpaid purchase money would have been justly hers. If they had paid the plaintiff $20,000 they would have got the legal estate with a liability to convey to the defendant on payment of her debt. Everything they paid to the plaintiff beyond that debt would have been a sheer gratuity. The plaintiff was substantially a mortgagee, and can it be contended that if a mortgagee and mortgagor join in conveying the estate to a third person, the mortgagee is entitled to receive out of the price anything beyond the mortgage debt ?
That the parties separately or jointly agreed to sell to Wyatt & Wynne, and took separate notes, did not alter the relations between them: though perhaps, if Wyatt & Wynne had paid their notes in full, it might have been different. The plaintiff never released the defendant from the note. The contract between them was never rescinded. The equity of the case, is too plain to need discussion.
Judgment below affirmed. The defendant will recover her costs in this court.
Let this opinion be certified.
Per Curiam. Judgment affirmed