452 JONES v. JONES.

of the arguments of the counsel, as well as of the opinion of the
court. The question turned upon the construction of the act of
assembly as to the continuance of the State's lien, and nothing
more. The point, whether by a sale under a fieri facias,
the real estate had been converted into money or personalty,
or whether the surplus was to be regarded as real or personal
estate, could not have arisen; because either alternative might
have been assumed; and, upon the principles laid down, the
decision must have been the same; and therefore, this point
could not have been in the mind of the court and decided
upon in that case. And besides, this act of assembly(x) does, in
itself, most manifestly regard the surplus as money or personalty;
for, it declares, that the sheriff shall sell the lands to the highest
bidder, and shall retain sufficient in his hands to pay the debt and
all costs, his own fees included, returning the overplus, if any, to
the debtor; that is, he shall from the money, into which the lands
have been converted, pay the debt, returning the overplus of that
money to the debtor.

There is therefore nothing to be found in that case, when care-
fully examined, which can be considered as at all at variance with
the general and well settled principles of the common law, accord-
ing to which, in all cases where personal property has been legally
sold under a fieri facias, it is held to be made into money; or, if it
be realty, that it is by such sale converted into money, or personalty.

It frequently occurs in this court on creditors' bills, where the
originally suing creditor claims by simple contract, and the land
has been sold to satisfy his claim, that there afterwards come in
mortgagees or judgment creditors; in which case the sale stands and
is deemed valid, and their liens are considered as following and
binding the proceeds of the sale; not because those proceeds are
held to be realty; but because no act of any other creditor, or of
the court can divest a mortgagee or judgment creditor of his lien
upon the lands without giving him a satisfaction, according to the
priority of his lien, out of the proceeds of the sale of that land
which had been so bound. If, however, in a creditors' suit against
the representatives of their deceased debtor, his lands are sold to
pay his debts, leaving a surplus; or if, in a suit by a mortgagee
against the heirs of the mortgagor, the mortgaged land is sold to
pay the debt, leaving a surplus, in such cases the surplus is con-
far) March 1778, ch. 9, s. 7.