This is a bill of foreclosure, in which the prayer is in the alternative, for a sale of the mortgaged premises; or that the defendant’s equity of redemption may be foreclosed. The answer admits the mortgage, and the debt for which it was given. The only defense set up is, that at the time when the mortgage was executed, there was an outstanding judgment and execution which were unknown to the parties ; that the defendant as soon as he ascertained the fact, informed the plaintiff of it, who then promised to pay off the judgment debt, and thus remove the encumbrance, which, however, he neglected to do, and the land was sold under execution, and purchased bona fide by one Michael Francis, who paid and took the sheriff’s deed for it; that the plaintiff received about $400, the overplus after paying off the said execution and costs; and that the said Francis had, subsequently, upon be*465ing repaid Ms purchase-money, conveyed the land to the defendant and his wife; or at least, had contracted to do so. The defendant contends that these transactions are a bar to the plaintiff’s claim.. The defendant has filed, as an exhibit, the deed from the sheriff to Francis, upon which is endorsed a valid conveyance from him to the defendant and his heirs, for the said land, reciting as a consideration therefor, the payment to Mm of one hundred dollars. The answer does not' state by whom this consideration was paid; but in the absence of any allegation and. proof to the contrary, we must presume that it was paid by the defendant himself.
The case then is simply this; that there was an encumbrance upon the land at the time when the mortgage was made, which was unknown to both parties, and that the defendant has since removed it, as it was his undoubted duty to have done. FTo argument can make the plaintiff’s right to the relief which he seeks, plainer than it is made by the bare statement of the facts. There must be a decree that unless the defendant, within six months after being served with a copy of the decree, shall pay to the plaintiff the residue of the mortgage debt, the clerk of this Court shall, after due advertisement, proceed to sell the mortgaged premises for the payment of said debt;. to.ascertajn which, if necessary, there-must be a reference..
Pee Cubiajj.. Decree accordingly.