concurring: The sole question presented is whether the plaintiff whose land is charged with payment of the mortgage debt can maintain this action to compel the mortgagees to credit the debt with the usury paid thereon. Revisal, 1951.
The plaintiff having bought the land subject to the’ mortgage, which he has assumed to pay off, the land is in the position of a surety to the mortgage debt, and therefore the plaintiff is entitled to be protected against the payment of any more than the amount legally due thereon, and can maintain this action against the mortgagees to determine the balance legally due and is entitled to join his grantor to compel her to execute her agreement to ascertain the amount due, and besides she is a necessary party in an action to ascertain such balance.
The land in the hands of the grantee of the mortgagor cannot be subjected by foreclosure sale to the payment of any larger amount than it' could have been sold for if it had remained in the ownership ánd possession of the mortgagor. Bank v. Loven, ante, 664.
This is not an action to restrain foreclosure of a mortgage, but it is to compel a statement of the account between the mortgagor and mortgagee as to the balance legally due upon the mortgage debt. In Erwin v. Morris, 137 N. C., 48, it was virtually held that a purchaser of land from the mortgagor could bring an action to purge the mortgage debt of usury, or could do so by way of defense; otherwise, the injunction would not have been continued in order to ascertain the terms of the contract between the mortgagor and the grantee as to payment of purchase money.
The authorities seem quite uniform that the grantee of a mortgagor can avail himself of the defense of usury as against the holder of a mortgage on the land unless barred by the contract of purchase. Bank v. Drew, 117 Am. St., 231; Ford v. B. and L. Assn., 109 Am. St., 192; Klapworth v. Dressler, 78 Am. Dec., 87. If this were not so, then the plaintiff as grantee could not avail himself of the contract that the grantor would ascertain the balance legally due by an action for that purpose, and would be forced to resort to an injunction which under some decisions of this Court might deprive him of the benefit .of his contract with the grantor that he should pay only the balance legally collectible, which means', of course, the balance which the mortgagee could have collected out of the land in an action against the mortgagor to determine that amount.
*830Tbe court should have proceeded to have tbe account stated for tbe ascertainment of tbe balance “legally due and collectible” as between tbe mortgagor and mortgagee, and tbe plaintiff is entitled tó be exonerated upon payment by bim of said amount. Ue would have no cause of complaint as against tbe mortgagees beyond tbe amount of bis mortgage if tbe counter-claim by reason of tbe usury should under Revisal, 1951, amount to enough to cancel tbe debt.
The plaintiff is entitled to any relief which tbe facts stated and proven entitle bim to receive, and be is not barred of this because in bis prayer for release be asks for more or a different relief from what be is entitled to have. Pell’s Revisal, subsec. 3, and numerous cases therein cited. Gillam v. Ins. Co., 121 N. C., 369, and cases cited in Anno Ed.; McCulloch v. R. R., 146 N. C., 317; Bradburn v. Roberts, 148 N. C., 214, and numerous other cases down to Bryan v. Canady, 169 N. C., 583.