dissenting:
Upon application for a re-hearing a different view of this case is presented from that which was brought to.the attention of the Court upon the first hearing. Russell was a defendant in the proceeding to foreclose the first mortgage. As the holder of the second mortgage, he was an “assign,” or a “person interested in the premises through or under” the original mortgagor. His position as a party holding under the mortgagor cannot be affected or changed by the fact, that he has obtained a decree of foreclosure upon his second mortgage. Hence, his right to redeem could only be exercised within twelve months from the sale under the proceeding to foreclose the first mortgage, because section 18 of the Act in relation to judgments, etc., (2 Starr & Cur. Stat. page 1395,) provides that “any defendant, his heirs, administrators, assigns or any person interested in the premises, through or under the defendant, may within twelve months from said sale redeem the real estate so sold by paying to the purchaser thereof, his executors, administrators, or assigns, or to the sheriff or.master in chancery * * * for the benefit of such purchaser, his executors, administrators, or assigns, the sum of money for which the premises were sold or bid off, with interest,” etc. It was the privilege of the second mortgagee, being a defendant to the suit to foreclose the first mortgage, to bid at the sale under the decree therein, a sufficient amount to pay what was due on the. first mortgage and leave a surplus to be applied on the second. But whether he chose to do so or not, his right to redeem is fixed by said section 18.
Section 20 of said Act in regard to judgments, etc., refers only to a decree creditor who has a money decree, or decree upon which an execution can be issued. The mode of redemption to be pursued by such a decree creditor can only be by issuing an execution according to the express language of section 20. No provision is made in the statute for redemption by a creditor having a mere decree of foreclosure, unless such provision is contained in said section 18.
Mr. Justice Phillips : I concur in the dissenting opinion, of Mr. Justice Magruder.