McTAVISH VS. CARROLL. 167

It is objected by the counsel of one of the parties interested
adversely to Neilson, that if the latter thought the lots mort-
gaged to him possessed any peculiar value, he should have re-
quired them to be sold separately, and not having done so, he
cannot now insist upon receiving more of the proceeds of sale
than is attributable to the quantity of land contained in his
mortgage.

But the answer to this, which I consider sufficient, is, that
neither Neilson nor Caton were parties to the cause under which
the property was sold; and, that the sale was made under a
mortgage prior in date and paramount in title to the deed un-
der which they claimed.

This objection then being, as I think, untenable, the ques-
tion resolves itself into one of fact, and that, of course, depends
upon the evidence taken in relation to it.

In the Auditor's report of November last, in speaking of the
evidence of the defendant, William Carroll, and that of James H.
Stimpson, the only witnesses who had then been examined upon
this point, he remarked, that their testimony was so completely at
variance as to be altogether irreconcileable; and, he submitted
the propriety of authorizing the parties to take further proof to
remove the difficulty. An order was subsequently passed for
that purpose, and upon reading the depositions taken under this
last order, and considering it together with the proof previous-
ly on file, I am very decidedly of opinion, that the lots in ques-
tion, numbered 16, 16, 145 and 229, were worth, at least, as
much as all the rest of the property comprehended in these pro-
ceedings; and, therefore, after the full satisfaction of the mort-
gage to the late Charles Carroll of Carrollton, the surplus pro-
ceeds of sale must be applied, in proper proportions, to the pay-
ment of the mortgage to Neilson, and to the creditors of Rich-
ard Caton.

Wherefore, it is ordered, this 28th of January, 1850, that
this case be, and the same is hereby, referred to the Auditor,
with directions to state an account accordingly. Exceptions
of the parties at variance with this order are overruled.

[No appeal was taken from either of the orders in this case.]