This case may be thus briefly stated. Morrison was the owner of two lots in the town of Pittsfield. In 1840, Johnson recovered a judgment against Morrison, which was a lien on the lots. In 1842, Morrison mortgaged the lots to White. In 1843, Morrison sold and conveyed the lots to Butler. At the same time, an agreement was entered into between Morrison and Butler, by which Butler agreed to pay Morrison $375, in part consideration for the lots, and Morrison agreed to discharge the existing incumbrances on the lots. In 1845, the lots were sold, under an execution issued on the judgment, to Grimshaw, for $58, the balance then due on the judgment. Grimshaw assigned the certificate of purchase to Butler, who obtained a sheriff’s deed for the lots. Afterwards, a final settlement took place between Morrison and Butler, in which the latter was credited with the amount paid Grimshaw for the certificate. Subsequently, White filed a bill against Morrison and Butler, to foreclose his mortgage. Butler, in his answer, claimed title to the lots under the sheriff’s deed, to the exclusion of the mortgage. The foregoing facts appear from the pleadings and proofs in the case. The Circuit Court dismissed the bill, and White brings the record into this court.
The complainant was clearly entitled to a decree. Butler was not in a position to rely upon the sheriff’s deed. He received from Morrison the amount advanced for the certificate of purchase. He thereby waived his rights under the judgment. He could not receive back the purchase-money, and at the same time assert title under the conveyance. He was not a purchaser for a valuable consideration, for, in point of fact, he paid nothing *116for the title. In equity, the whole transaction must be considered as bdt a payment of the judgment by Morrison. He was bound to discharge the incumbrance, and Butler was his debtor. Butler purchased the lots under the judgment, and then obtained credit for the amount of the purchase-money. In other words, he advanced the money on account of Morrison, and then received payment of the same. If he ever designed to assert title under the judgment, he abandoned that intention when he accepted payment from Morrison. If he made the purchase to protect himself against his mortgage, he surely would not have claimed or received payment from Morrison.
The decree of the Circuit Court will be reversed, and the cause remanded, with directions to that court, to enter a decree for the foreclosure of the complainant’s mortgage.
Decree reversed.