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618 THE CAPE SABLE COMPANY'S CASE.
who was no party to the suits at law, and only went to protect
particular property from the executions,
in the event of that property proving deficient, no redress could be had to recover
the deficiency if Howard was ever able to meet it. To say the mortgage merged
the claim at law would, in effect, be determining the mortgage itself a nullity; for,
when it was given no claim existed; the object of the deed was to secure the pay-
ment to Mullikin of whatever sum he might pay, not that he had paid; it was en-
tirely prospective. But although the legal right remained in Mullikin to obtain a
judgment for the money paid by him, it will not follow, that he could not part with
his right to receive the money when the judgment was obtained.
All that Mullikin could do was to transfer the property, mortgaged to him by
Howard, subject as between him, his assignee and Howard, to the proviso of
Howard's deed. But, as between Mullikin and his assignees Wilkins & Co., subject
to the proviso contained in his, Mullikin's, deed to them. Of course, all the inte-
rest Wilkins & Co. obtained to secure their debt was the extent of Mullikin's claim
on Howard; if that were less than was due to Wilkins & Co., they would have to
resort to other funds; if none, must have borne the loss. If their claim, as appears to
be the case, were less than the debt due from Howard, and the mortgaged premises
were adequate, then the balance would have belonged to, and was subject to Mulli-
kin's disposal. But, as he had transferred to Wilkins & Co. the claim he had on
Howard, to the extent of the claim on him, it was not in his power, equitably, to
transfer the whole claim to another person.
Wilkins & Co. appear to have absolutely conveyed to the complainant all their in-
terest; and yet his own property, in the possession of Howard, has been taken in
execution to be sold to raise money to be paid to William Gwynn. If Howard himself
was able and willing to pay to Mullikin or Gwynn the whole amount of the judg-
ment, on an application to this court, he would be prevented, and only permitted to pay
the balance after discharging the debt that was due to Wilkins &. Co., or he would
be directed to bring it into this court, when a similar distribution would he made.
In respect to the bond. This cause cannot be distinguished from that of Stewart
v. Yates, (ante 615, ) determined by ray predecessor, founded on a prior decision.
There an injunction issued to prevent property from being sold under a fieri facias
issued on a judgment obtained against a third person who held the legal estate in
the property intended to be sold, the equitable title being in the complainant. Here
an attempt is made against the consent of him who has a right to the whole money
to be raised, supposing it not to extend to the debt that was due to Wilkins & Co.,
to sell his own property. If the complainant has not the legal control of the judg-
ment, he lias an equitable, to the extent mentioned, supposing the transfers to
him, that are exhibited with the bill to be bona fide; and, prima fade they are so
considered; and therefore the injunction prayed for ought to issue; and the register
is directed to issue it as prayed.
After which the defendant Mullikin filed his answer, and moved to dissolve the
injunction. Upon consideration of which, on the first of January, 1825, the injunc-
tion was continued. After which the defendant Gwynn put in his answer, and
thereon moved to dissolve; but upon consideration thereof, the injunction was, on
the 30th of March, 1825, continued. After which the otter defendants having
answered, the motion to dissolve was again renewed; but on this third considera-
tion, upon the answers of all the defendants, the injunction was, on the 2d of
November, 1825, again continued. After which a commission was issued, and tes-
timony taken. And at the final hearing on the 24th of July, 1828, the injunction
was dissolved, and the bill dismissed with costs.
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