The opinion of the Court was delivered by
Rogers, J.
It sometimes happens, in our mixed jurisprudence of law and equity, that we are greatly embarrassed in affording that equitable relief to which a party may be justly entitled. The plaintiff’s case would be one of equitable cognizance; but for want of a Court of chancery, we are obliged to mould our common law forms to reach the substantial justice of the case. Richard Roberts mort*185gaged the land which is now in controversy to the .plaintiff, John Williams. The executors of Joseph Williams obtained a judgment against Richard Roberts, in his lifetime, conditioned for the payment of two thousand six hundred and eighty dollars. To a writ of venditioni, which was issued on this judgment, the sheriff returned, “ land sold to Thomas Lowry, for the sum of twelve thousand nine hundred dollars, which money I have ready, before the judges within-named, as within I am commanded.” The mortgage is prior in date to the judgment, and consequently, according to the case of Willard v. Norris, (2 Rawle, 56,) and The Corporation v. Wallace, (3 Rawle, 109,) the purchaser at the sheriff’s sale takes the land, discharged of the lien of the mortgage. The money in the hand of of the sheriff is substituted for the land; and the remedy by the mortgagee on this return, is against the sheriff. As respects the mortgagee, or his personal representatives, the money received by the sale being more than sufficient to discharge the amount due, the mortgagee can be compelled to enter satisfaction ; for it would be unjust that the debtor should be deprived of his land, by a judicial sale, and at the same time remain liable for the debt. This is so obvious, as not to admit of question; but it is alleged by the plaintiff, that there was an agreement between him and the vendee, that the lien of the mortgage should remain, notwithstanding the sale. The agreement was made for the convenience of the purchaser, who was unable, at that time, to pay the purchase-money; and as between these parties, such a contract would raise an equity. A Court of chancery would compel the purchaser, to execute a mortgage, or would consider the agreement in the nature of an equitable mortgage, or would decree him to be a trustee for the mortgagee, until the debt was paid. A refusal on the part of the purchaser to perform the contract, would be a fraud, — a principal ground of equitable jurisdiction, and against which a chancellor would grant relief by a special decree. Thus the case would stand between the original parties, but as against the representative of the mortgagor, there is no equity whatever. On the contrary, as he was no party to the agreement, he has a right to complain that the mortgage has been kept on foot by a secret agreement, to his manifest injury. By the sale the debt is paid, and in a suit on the bond on proof of the facts the administrator would be entitled to a verdict. This is not like the case of a sale subject to the mortgage, as in Stackpole v. Glassford, (16 Serg. & Rawle, 166.) It- is not disputed, that all the purchaser would have to pay for the property, was the amount of his bid. The agreement was made to supersede the necessity of paying the money to the sheriff — an agreement which the mortgagee had the right to make, but by which he exonerated the sheriff from liability for the money raised by the sale, and at once discharged the lien of the mortgage. And whether the sheriff was privy to, or assented to the agreement, or not, can make no difference, as the *186question may affect the plaintiff and the vendee of the sheriff. It is also equally clear, that a bona fide purchaser for a valuable consideration, stands in a different position from the original purchaser. A subsequent purchaser takes the land, discharged from the equity, unless the plaintiff brings some notice to him of the agreement. Thus it will be seen, that to affect mortgaged premises in the hands of a third person with this secret equity, it will be necessary, not only to prove the contract, but in addition, that the terre-tenant had notice of the agreement.'
This was a scire facias on the mortgage. The suit is brought against the administrator and terre-tenants. The sheriff returns ‘ ni-hil,’ as to George S. Roberts, and ‘ made known,’ to John Freedley, James Freedley, James Wells, Thomas Lowry, and James Steel, terre-tenants. The terre-tenants who were summoned pleaded payment with leave; and as to them issue was regularly joined. Afterwards Jacob Freedley was permitted by the Court to come in and take defence in the suit, and to plead in the same manner as if the original scire facias was served on him. Freedley then offered a special plea, which was overruled by the Court; but for what reason, has not been clearly explained. If the plea was defective in form or substance, it was open to the plaintiff to demur; and if taken by surprise, the Court, on motion, would have continued the cause. He had a right of which he could not be deprived, to bring his case before the Court, either in the form of a special plea, or to take defence under the plea of payment. So far, then, as respects this defendant, the cause was not at issue; for it is idle to say that he adopted the pleas of the other defendants. The case of Britton v. Mitchell, (5 Watts, 69,) is full to the point. A party cannot be compelled to try until the cause is put into legal form, by an issue properly found, between all the parties on the record.
The scire facias is brought against the administrator and terre-tenants ; and it would be error to try the suit in a different manner. Where a scire facias was brought upon a recognisance in the Orphans’ Court against the cognizor and terre-tenants, and the cog-nizor died before judgment, it was held, in Reigart v. Ellmaker, (6 Serg. & Rawle, 44,) and Keen v. Same, (8 Serg. & Rawle, 4,) to be error to proceed to trial against the terre-tenant alone, where the administrator, upon being duly served with a scire facias, has neglected to come in and be made a party to the record. The proper course is, when the personal representative does not appear and take defence, to sign judgment by default, de bonis testatoris; and the terre-tenants will be permitted to defend -pro inter esse suo. These principles are applicable to this case. It is proper that the administrator of the mortgagor, who is the principal debtor, should be made a party, in order that he may have the opportunity to prove the payment of the debt. And this is necessary also for the security of the terre-tenants, who cannot be presumed to be acquainted with *187the state of the account, between the mortgagor and mortgagee. Here the plaintiff has not thought proper to pursue this course before proceeding against the terre-tenants; and this, according 'to the cases cited, is clearly erroneous. The plaintiff seems to have been sensible of this error; for on the same day on which the judgment was given, the Court rendered judgment against the administrator for the amount ascertained by the verdict against the terre-tenants. But a slip of this kind cannot be thus noticed; for as the mortgagor is the party against whom suit is to be-brought, until he is in Court, the cause cannot proceed, for want of parties. If he does not appear, the plaintiff,must proceed, for want of appearance, to judgment by default; and having thus disposed of the legal party, he may pursue the land in the possession of the terre-tenants. Rendering judgment against the administrator is not a formal, but it is a substantial objection to the proceeding. If the judgment be permitted to stand, and hereafter the mortgaged premises should prove inadequate to pay the amount of the verdict, the estate of the deceased, or the administrator personally, must make good the deficiency. In a suit on the bond which accompanies the mortgage, the verdict on the scire facias would be conclusive as to the amount due. It would not be open to the administrator to insist on payment by the judicial sale; as the same subject-matter having once been tried, could not be renewed in a suit between the same parties. And yet it is too clear for argument, as has been before shown, that so far as respects the administrator, the debt has been paid.
We are further of the opinion, that the Court erred in omitting to swear the jury as to James Wells and Thomas Lowry. The scire facias was in the most approved form, against the administrator and terre-tenants. The sheriff having summoned them as terre-tenants, they are as much parties on' the record, as if named in the writ. Lowry and Wells, in the first instance asked leave to file special pleas; which was overruled by the Court. Afterwards they filed disclaimers; but in filing disclaimers, they do not cease to be parties. This is ruled in Britton v. Mitchell, (5 Watts, 67,) where the course to be pursued is plainly pointed out. The Court may compel a party who‘disclaims to give judgment, which will secure costs and damages; or they may order him to plead instanter; on which the parties may go to trial. In Morris v. Morris, (5 Watts,) it is decided, that a plaintiff having issued a scire facias, with notice, to several terre-tenants, cannot enter a nolle prosequi as to some of them, and proceed against the others. After having placed parties on the record, it is not in the election of the plaintiff, and one of several terre-tenants, to treat them as if they had never been summoned. It may be of the utmost importance to the defendant, that all who have once been parties, should remain so, as they may be liable for contribution, and for the costs. The Court orders the jury to be sworn as to the other defendants, omitting two who had *188been summoned; and, what is not the least objectionable feature in the case, Lowry, one of them, is examined as a witness to prove the agreement, which is the foundation of the plaintiff’s action.
We would not wish to be understood as expressing a decided opinion whether the equity of the plaintiff’s case can be reached in this form of suit. Perhaps justice may be done by a replication to the defendant’s plea, setting forth the agreement, and averring that the terre-tenants had notice of the agreement. Whether Lowry was a competent witness, does not seem to have been made a point at the trial. It may, however, be well worthy of serious consideration, whether, independently of his position as a party, he has not such an interest as renders him incompetent. In the view which we have taken of the case, it is immaterial to the case whether the Court erred in rejecting the evidence contained in the bill of exceptions. Nor is it necessary to notice the exceptions to the charge, except, as has been already done, in the preceding remarks.
Judgment reversed, and a venire de novo awarded.