The relator claims an absolute right under the provisions of the revised statutes, (1 R. S. 175, § 33 et seq.) to have his part of the mortgaged premises discharged upon payment by him of the amount of the mortgage
But by an act passed in 1839, (Stat. p. 347,) the grantees of a mortgagor in a state mortgage, may, pending the proceedings to foreclose, make affidavits of their respective titles, and indicate with certainty the parcels of the premises owned by them, upon which it is made the duty of the attorney general, in the first place to sell any portion of the mortgaged premises not alienated by the mortgagor, and if that does not produce sufficient to pay the mortgage, then to sell the residue in the reverse order of its alienation—thus preserving the rights of the parties according to principles well established in courts of equity. Under this statute the duties of the public officers would be entirely plain were it not, for the separate account opened at the instance of the relator and his claims to an advantage over the prior grantees arising out of the provisions of the revised statutes relating to separate accounts. But for this feature of the case, the attorney general would be bound, in the first instance, to sell the 15| acres unconveyed; then the relator’s land, then Downing’s, and lastly that owned by the grantee of Gere—ceasing to sell, of course, when the proceeds of the sale should be sufficient to pay the mortgage debt and costs.
The principle adopted at the comptroller’s office upon an application for a separate account, is to charge the land of the applicant with such a proportion of the debt as the quantity and value of his land, exclusive of buildings, bear to the whole lot mortgaged. This would doubtless be correct in relation to land purchased from the state and held under contract, and also in a case where land had been mortgaged to the state, and the mortgagor had conveyed different parcels to several individuals at the same time, and it would be well enough where
Motion denied.
Decided in December, 1846.