(after stating the facts). The purchaser at the judicial sale acquired title to the land, and the mortgage by the defendants in the suit, of their shares, only had the effect of putting the mortgagee in the place ' of the mortgagors, so that he could claim what remained after payment of the testator’s debts, what the devisees would have been entitled to, if no mortgage had been made. His right was transferred from the thing sold to its substituted proceeds. This was quite distinctly announced in the opinion when, with other features, the case was before us three years since. “And as the assignee of the former class, (next of kin or legatees,) must assert his claim in the distribution of the personal, so must the mortgagee prefer his, when the real estate fund is to be paid over to those of the latter class,” (heirs or devisees). “A verdict and judgment in an action of detinue,” in the words of Henderson, J., are conclusive as to the title between the parties and their privies.” * * * “ Privies in estate are those who come in under the owner, and the estate stands burthened, in their hands, with those incum-brances created by him before he parted with it. Therefore if a suit was pending against him for the property when he parted with it, in which there was afterwards a judgment, that judgment relates to the commencement of the suit and binds subsequent purchasers.” Briley v. Cherry, 2 Dev., 2; Cates v. Whitfield, 8 Jones, 266.
No change in the rule is brought about by the statute prescribing how notice of a Us pendens shall be given, The Code, §229, when the transaction is in one and the same county, as in the present case, and notice is furnished in the record in the pending action. So it is held in Badger v. Daniel, 77 N. C., 251; Rollins v. Henry, 78 N. C., 342; Todd v. Outlaw, 79 N. C., 235.
Besides the constructive notice given by the record of the pending suit, all the parties in interest were fully cognizant of all that was done, and the loan and mortgage were in*117tended to be, and so known to the mortgagee, as well as to the others, in furtherance of the objects of the suit, and to secure a more advantageous sale of the land. The doctrine of subrogation, if applicable, need not be invoked in aid of the plaintiff’s equity. As assignee of the estate of the several devisees, the guardian who loaned the money succeeds to all their rights to come in and take what they could respectively have taken had no assignment been made; that is, their shares of the surplus of the proceeds of sale not required in the course of administration, so far as was necessary to discharge the mortgage debt. This is the legal effect of the conveyance, and it is not necessary to resort to a substitution in place of creditors. This is so obviously the position of the plaintiff in the controversy as to need no comments in further elucidation.
The case of Smith v. Fortescue, Busb. Eq., 127; fully warrants the present proceeding, and is almost a direct decision in favor of the judgment. The conduct of Whitaker in his voluntary participation in the wrongful disposal of the note, and appropriation of it to the executor’s own debt,' renders him equally liable to be called on to restore the money to those thus defrauded. He will not be permitted thus to use trust funds when he is fully aware of their nature, or there are circumstances to awaken suspicion and put him on inquiry. The authorities upon this point are numerous, and we refer to a few. Exum v. Bowden, 4 Ired. Eq., 281; Wilson v. Doster, 7 Ired. Eq., 231; Lemly v. Atwood, 65 N. C., 46.
We find no error in the record, and the judgment must be affirmed.
No error. Affirmed.