On petition por a rehearing.
Biddle, J.— No questions except those considered in the original opinion have been argued on the petition for a rehearing, but they have been more fully discussed
1. It is insisted, that William E. Bearss had no mortgageable interest in the lands, at the time he and his wife executed the mortgage to Walker; that, as he had no leviable interest in the lands at the time, he therefore had no mortgageable interest in the lands.
But it does uot follow, because William E. Bearss, at the time the mortgage was executed, had no interest in the land which could be levied upon at law, that, therefore, he had no interest therein that he could mortgage in equity. lie had an interest which he could sell and assign, and what can be sold and assigned can be mortgaged. Besides, whatever we might decide if the question w*as one of first impression, we are constrained by the authorities of our own court, cited in the opinion, to hold that an equitable interest in lands can be mortgaged.
2. It is also contended that the appellant was not affected by the lis pendens at the time he purchased 'the land. We think he was. and that George R. Bearss, his vendor, and William E. Bearss, the vendor of George, were also affected by the lis pendens; and, being so affected, neither vendee in the line of title could take any more *371interest in the land than his vendor had at the time of his conveyance. Holding that "William E. Bearss had an interest in the land which he could mortgage, after he executed the mortgage and it was duly recorded, there could be no suit on the mortgage affecting the land inrem., that would not be a Us penclens to all the world. But we do not think the case turns upon the question of lis pendens. As George R. Bearss took the land from William E. Beai’ss subject to the mortgage, so the appellant took the land from George R. Bearss subject to the mortgage. Neither George R. Bearss nor the appellant took any thing by their purchase, except the equity of redemption in the land; and, if Walker had not commenced his suit until after the appellant had obtained his title from George R. Bearss, neither George R. Bearss nor the appellant could have resisted Walker’s mortgage on any more advantageous grounds than William E. Bearss could have done, in the first instance. Walker’s rights, under his mortgage, could not' be affected by any succession of titles, derived originally from William E. Bearss, after the mortgage was executed and recorded. The rights of a mortgagee, when the mortgage is duly recorded, can not possibly be affected by a sale of the land by the mortgagor. See the lis pendens act. Acts 1877, Spec. Sess., p. 54.
3. It is further urged that the action being in ejectment, and Walker holding nothing more than the equitable title which William E. Bearss conveyed to him by the mortgage, he therefdre could not maintain an action in ejectment. We need not decide that Walker held the legal title, for we have decided at the present term, in the case of Burt v. Bowles, ante, p. 1, that any person, under section 592 of the code, having a valid subsisting interest in real property, whether legal or equitable, which entitles him to the possession thereof, may recover the same in an action of ejectment. At all events, after the foreclosure of the *372mortgage, and the sale of the land to Walker, all the title either the Bearsses or the appellant ever had in the laud was extinguished.
Upon full consideration, we overrule, the motion for a rehearing.