HODGES v, MULLIKIN. 505

he, Harwood, on the 11th of September 1810, by a deed legally
.executed, mortgaged the same property to Hodges for the debt
due to him. But as this mortgage recites the deed of trust,
Hodges could only take subject to the prior lien created by that
deed.

On this state of things, Hodges filed his bill, on the 15th of June
1822, against Thomas Harwood, and Benjamin Mullikin, as the
surviving trustee, to have the property sold for the satisfaction of
the debt for which it had been mortgaged; by his bill, he
makes an exhibit of the deed of trust as well as the mortgage,
and states, that Benjamin Harwood was dead; in consequence
of which the trust had survived to the defendant Mullikin.
This suit, thus instituted, was marked on the docket for the use of
Wilson & Sons. Harwood, in his answer, filed on the 12th of
December 1822, states, that the debts specified in the deed of
trust were still unpaid, and insists that a decree in favour of
Hodges cannot be passed; on the ground, that those creditors
have a prior lien, and should be made parties. But Mullikin, in
his answer, filed on the 14th of July 1823, merely says, that
he has sustained no injury; has no claim to the property men-
tioned in the deed of trust; and submits to such decree as may
be deemed just. To these answers a general replication having
been filed, a commission was issued, which having been returned
without collecting any proofs, the case was submitted on the notes
of the solicitor for the plaintiff, and on the notes of the solicitor
for the defendant Harwood. Upon which, on the 2d of May
1825, a decree was passed, that unless the defendant Harwood
paid the mortgage debt and costs on or before the 2d of June,
then next, the property should be sold. It does not appear, that
the mortgage debt has been paid, or that any sale has been made
under the decree.

On the 25th of August last the defendant Mullikin filed his
petition, on oath, in which he sets forth particularly the course
he had pursued, and how far he was uninformed; and concludes
by averring, in general terms, that he acted throughout in igno-
rance of his legal rights and duties; in ignorance of the facts;
and was misled and deceived by his co-defendant Harwood;
by the gross neglect of the specified creditors to notify him of their
claims; and by the omission of the plaintiff's solicitor, Nicholas
Brewery to inform him of the answer of the defendant Harwood,
and the matters therein stated. Upon which the petitioner asked

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