¶1The chief justice, after stating the case, delivered the opinion of the court.
¶2A good deal has been said during the argument, concerning the duty of a sheriff to give notice of incumbrances, and to apply the proceeds of the sale to the payment of the liens on the land, whether by judgment or mortgage according to their respective priorities. The court deem it unnecessary to give any opinion on these points; because independent of any thing of that kind, there was sufficient cause for nonsuiting the plaintiff.
¶3If the plaintiff can recover in this action, it must be, because equity demands, that the defendant should refund the money which he paid to Peregrine H. Wharton, instead of applying it as he ought to have done, to the discharge of the .mortgage. But a decisive objection to the plaintiff’s claim, is, that it would be against all equity, that he should get back his money, and at *490the same time keep the land. He ought to have tendered to the defendant, a re-conveyance, to be delivered on payment *of the money. He cannot be allowed to affirm and avoid ^ the contract at the same time. The court are therefore *- 491 of opinion, that the motion to take off the non-suit, be rejected.