The cardinal point of controversy between the original parties to this proceeding, was settled !by the decree of the Court in setting aside the sale made to Applegate by Todd, the trustee. This ruling of the Court is not appealed from. The only question to be disposed of relates to the disposition of the funds in the hands ■of the Receiver. Edie claims that it belongs to him as the lessee of Moriarty, the vendee of Wilkins & Zeigler, that the sale under the deed of trust being set aside. Apple-gate could not be regarded as a mortgagee, and entitled to the possession, from the fact that the conditions in the mortgage had been broken.

It is claimed by Applegate that notwithstanding the sale had been set aside, yet when the purchase was made he *277became entitled to tbe rents and profits, and tbat all Edie, wbo stood in the shoes of Moriarty, could require, would be that Applegate should account for the rents and profits by giving credit for the amount upon the notes held by him, that the setting aside of sale placed Applegate in the position of a party who has entered into possession for the purpose of foreclosing his mortgage, but has not done so.

It is also claimed that Edie and Moriarty each indorsed the several notes given by Wilkins & Zeigler to Applegate, and that they are each liable for the payment of said notes N secured by the deed of trust, and the said notes being due and unpaid, the Court, in the proper exercise of its i chancery powers, could apply the funds in the hands of the Eeceiver to the payment of said debts.

It is denied by the appellant that there was any evidence introduced in the Court below, or in the record tending to show that the appellant ever indorsed said notes.

An amended or additional transcript is annexed to the original one, to which the said notes are attached, showing the fact as pleaded that the appellant was an indorser thereon.

The counsel for the appellee claims that this transcript has been sent up and attached to the papers since the cause was submitted, and that for this reason should not be considered. No effort, however, has been made to have this portion of the record stricken from the files and we therefore will have to consider it as properly a part thereof.

The evidence certified to as in this transcript shows clearly that Edie and Moriarty each indorsed the notes given by Wilkins & Zeigler, and that they guaranteed the payment thereof at maturity. Where the decree of the Court was entered disposing of the funds in the hands of the Eeceiver, these several notes had matured, and Edie the appellant was primarily liable for the payment thereof, upon his guaranty. Underothese circumstances the Court *278had the power to dispose of this fund in the manner that it did, and in fact, from the tenor of the decree we are inclined to the opinion that it was upon this ground that the order was so made.

Holding as we do, that Edie was not entitled to this money, that it was applied in the payment of a debt that he had assumed to pay, it is not important to determine whether Applegate, under the pleadings and evidence, was in equity entitled to the rents and profits while the property was in the possession of the Receiver.

The judgment is therefore

Affirmed. .