NORMAN V. HALLSEY. The action was instituted before a Justice of the Peace upon the theory that the defendant was liable to the plaintiff in assumpsit, as for money had and received to her use. If the action can not be maintained upon this theory, the justice had no jurisdiction. We do not think, in any view of the testimony, the justice had jurisdiction. The defendant can not be said to have received the proceeds of the sale of the land, or any part thereof, to the use of the plaintiff. The legal title to the land was, by the mortgage, vested in the heirs at law of Blount upon the trusts declared in the mortgage. The power of sale vested in him, devolved upon his executors pursuant to the provisions of the Act of 1887, as amended by the Act of 1901, chap. 186. The assignment of the note and mortgage to the defendant did not vest either the title or the power in him. Williams v. Teachey, 85 N. C., 402; Dameron v. Eskeridge, 104 N. C., 601; Hussey v. Hill, 120 N. C., 312; 58 Am. St. Rep., 789; Burris v. Brooks, 118 N. C., 789. Therefore, it was the duty of the executors to sell the land and apply the proceeds to the trusts declared in the mortgage, first, to pay the note and all costs and expenses of sale, and, second, "to pay the surplus, if any, to the said parties of the first part, etc." Certainly in view of this express trust the executors of Blount were not liable to the plaintiff in assumpsit for any part of the proceeds of the sale of the land. The defendant having no title to, or power in respect to, the sale of the land, could have done nothing in regard thereto, except as the agent of the executors. He was liable, and it was his duty to pay the excess over and above his note to them, and the law could not imply any promise to pay to the plaintiff. Therefore, this action was not, in any aspect of the testimony, within the jurisdiction of a Justice of the Peace. The action for money had and received can be maintained only when the money, or property which has been converted in to money, is received by the defendant under such circum NORMAN V. HALLSEY. siances as in good conscience and equity makes it his duty to pay it to the plaintiff. It is because of this duty that the law implies a promise to do so. The judgment creditor has no title to an estate or interest in the land of the judgment debtor; he has a lien thereon which he may enforce either by issuing an execution or by instituting a civil action, in the nature of a bill in equity, to enforce the lien. It is conceded that this lien, under our statute, extends to the equity of redemption. "A judgment creditor has no jus in re or jus ad rem in the defendant's land, but a mere right to make a general lien effectual by following up the steps of the law." Dail v. Freeman, 92 N. C., 351, 356; Baruch v. Long, 117 N. C., 509. The lien of the plaintiff was transferred by the sale of the land to the fund in the hands of the trustee or mortgagee, or, in this case, his executors. This lien he could have effectuated by an action brought in the Superior Court, in which all parties interested in the fund or its application could and should have been brought before the Court, and their rights administered; but he can not maintain an action in assumpsit against the defendant. He has not such right or interest in the money as is necessary to entitle him to do 80. The motion to dismiss presents the question whether a mortgagee selling pursuant to a power of sale and receiving an amount in excess of his debt, is required, before paying it over to the mortgagor, to examine the records to ascertain whether there be incumbrances subsequent to his mortgage, or whether he is entitled to actual notice of such incumbrances, before he is required to withhold the money and refuse to pay to the mortgagee. We are of the opinion that the mortgagee is not under any obligation to examine the records for subsequent incumbrances before paying the surplus to the mortgagor, in accordance with the terms of the mortgage or deed in trust. The Court, in McLean v. Bank, 4 McLean, 430 (Circuit BALK V. HARRIS. Court), referring to the rights of subsequent incumbrancers, caid: "Those general principles must be admitted, but they can only apply when notice was given to the first mortgagee of the subsequent liens. And there is no proof of The bank, in its answer, denies * * actual notice in this case. notice, and constructive notice from the recording of the subsequent mortgages is insufficient. The reason of the rule is apparent. The Franklin Bank looks to the property covered by its mortgage for payment, and that being received, not knowing that there are junior mortgagees whose rights may be affected, is indifferent as to the appropriation of the surplus. A notice, then, which puts the party on his guard is essential to make him responsible, and of such importance is this notice that it must be actually given, and not by the recording of a mortgage, which determines the lien." 2 Jones on Mort. (5th Ed.), sec. 1030; 2 Bingree on Mort., sec. 1464; Freeman on Judgments, 349; Black on Judgments, 404. For the several reasons given, the Court should have alicwed the defendant's motion to dismiss. In refusing to do so there was error, and the judgment is Reversed. BALK v. HARRIS. (Filed February 24, 1903.) 1. REHEARING-Supreme Court. The supreme court will not review a ruling of its own, which does not affect injuriously the complaining party, even where the ruling is erroneous. 2. APPEAL-Courts-Federal Question-Judgments. When the decision of a federal question by a state supreme court is necessary to sustain the judgment rendered, the supreme court of the United States will review such judg ment, although another question, not federal, is decided. BALK V. HARRIS. PETITION to rehear this case, reported in 130 N. C., 381. Petition dismissed. Chas. F. Warren, for the petitioner. WALKER, J. This case is again before the Court upon a petition to rehear the judgment rendered at February Term, 1902. When the case was first here, at February Term, 1898, upon appeal of the plaintiff (122 N. C., 64; 45 L. R. A., 257), this Court decided that the judgment of the Maryland Court in the garnishment proceedings, which was pleaded by the defendant in this suit as a defence in bar of plaintiff's recovery, could not avail the defendant, because it was invalid for two reasons, (1) that the affidavit upon which the writ of garnishment issued was defective, in that it failed. to state that the plaintiff, Balk, who was the defendant in that proceeding, had any property in the State of Maryland, and (2) that the payment of the judgment of the Maryland Court by Harris, the garnishee in that suit and the defendant in this, was voluntary. The defendant, Harris, at February Term, 1899, of this Court, filed a petition to rehear the judgment rendered at February Term, 1898, alleging as error therein that the grounds upon which this Court based its decision against him were untenable. At said term the petition to rehear was dismissed, but, to use the language of the Court, "for an entirely different reason from that given at the first hearing," and the Court gave as its reason for the dismissal of the petition that the situs of the debt garnished was not where the debtor Harris was "found," but where he "resided," and as he and his creditor Balk resided at the time in this State, the process of garnishment sued out in the Maryland Court and the judg ment of that Court by which the debt of Harris to Balk had BALK V. HARRIS. been condemned to the payment of the debt of Balk to Epstein, was invalid, as the Maryland Court had acquired no Jurisdiction to render any such judgment. As the first judg cient in the Court below was in favor of the defendant Harris, a new trial was ordered, and the case was again tried at May Term, 1901, of the Superior Court of Beaufort County, and in deference to the opinion of this Court, as just stated, the Judge who presided at the trial of the case, substantially directed the jury to return a verdict for the plaintiff, which was done, and a judgment in accordance therewith was entered against the defendant. The defendant, when the case was called for trial in the lower Court, moved in that Court to be permitted to plead and prove his discharge in bankruptcy, which had been issued to him by the proper Court since the last continuance. This motion was refused and defendant excepted. From the judgment against him he appealed to this Court, and assigned as errors the refusal of the Court to permit him to plead his discharge in bankruptcy and the instruction in regard to the judgment of the Maryland Court in the garnishment proceedings, the defendant contending that the Court, by the said instruction to the jury to the effect that the judgment of the Maryland Court was invalid for want of jurisdiction in the Court to render it, and was no defence or bar to this action, denied full faith and credit to the records and proceedings of the Maryland Court in the case of Epstein v. Balk. The case was again heard in this Court upon defendant's appeal at February Term, 1902, and the judgment was affirmed. Balk v. Harris, 130 N. C., 381. It appears from the brief of the defendant's counsel, filed at said term, that he withdrew the assignment of error relating to the discharge in bankruptcy, and that, notwithstanding such withdrawal, the question raised by the said assignment was discussed in the opinion of the Court as given by Furches, C. J., and decided against the defendant, as was also |