Appeal from Johnson Circuit Court.

Jeremiah G. Wallace, Judge.

STATEMENT BY THE COURT.

This is a bill to foreclose two mortgages, and appropriate the proceeds to the payment of the debts secured according to priority, as between the debt of the first mortgage on the one hand and the debts of the second mortgage on the other, and pro rata as between the latter.. In October, 1891, J. N. Sarber and wife gave their note to Brown as guardian, and secured the same by mortgage, with power of sale on certain real estate. In January following, they gave the two notes, the one to Powell and the other to' E. T. McConnell, and secured the same by mortgages, with power of sale, on same propei’ty as was conveyed in the first mortgage. In December, 1893, McConnell having assigned his debt to Pitzele, the latter, under the power contained in his mortgage, advertised and sold the property, causing the same first to be appraised; and the same brought $1,000, which was two-thirds of the appraised value, and Powell became the purchaser. In May, 1895, Brown having transferred his debt to Hamilton, the latter, having caused the property in his (the first) mortgage to be appraised, by virtue of the power therein conferred upon him, sold the property, and became himself the purchaser thereof for the sum of $1,500. Deducting his debt from said sum of $1,500, the purchase price of the land, Hamilton was about to pay over the remainder to J. N. Sarber and wife,when plaintiffs, McConnell, Powell and Pitzele, brought the bill herein, asking that Hamilton be restrained and enjoined from paying over said balance to the Sarbers, and that he be required to pay the same over to the plaintiffs, as their interests might appear, to the satisfaction of their two debts aforesaid. On the hearing at the May term, upon the complaint of plaintiffs and separate answers of Sarber and Hamilton, the chancellor dissolved the injunction theretofore granted, declared both sales to be nullities,'and continued the cause over until the following term, with leave to plaintiffs to file within sixty days their amended bill, asking for a foreclosure of both mortgages and distribution of proceeds of sale, and to defendants, within an additional thirty days, to file answers, and leave to take depositions thereafter, and set the ease down for heai’ing at the next term.

The plaintiffs filed their amended complaint, and the record goes on to show that at the next term, all parties appearing by their respective attorneys, the cause was heard upon the amended complaint and answers and exhibits; and a decree of foreclosure of both mortgages was entered, and sale ordered, and the proceeds of tbe sale, after payment of costs, were directed to be appropriated to the'payment of the first mortgage debt, and, secondly, the remainder to be appropriated pro rata to the payment of the two debts secured by the second mortgage; and from this decree the Sarbers appealed to this court.

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