The opinion of the court was delivered, by

If there were nothing else in this case than what appeared upon record when the fund for which these litigant parties are contending was raised, it would be clear that the distribution made by the auditor is correct. Suit had been brought upon the mortgage of the appellant and a judgment recovered. Under a levari facias founded on the judgment, another property included in the mortgage had been sold, for a sum sufficient to satisfy the debt, except to the extent of $209.92, and a sheriff’s deed had been made to the purchaser. The attorney of record had also receipted to the sheriff for the purchase-money. This amounted to a legal satisfaction, pro tanto, of the mortgage in favor of the *334debtor, and of course in favor of Williamson, a judgment-creditor of the debtor, subsequent to the mortgage.

The difficulty in the case arises from other facts found by the auditor. Ledyard, the attorney of record, had no warrant from Whelan, the appellant, to institute suit upon the mortgage. He was in the employment of O. W. Davis, the purchaser at the sale, who. instructed him to act as attorney of record for Whelan, and to sign a receipt for the purchase-money, less the expenses of the sale. Nor had Davis any. warrant or authority from Whelan to institute such suit, or to employ an attorney under him for that purpose. By this is to be understood that neither Davis nor Led-yard had any authority specifically to sue out a scire facias on the mortgage. But Davis was authorized by Whelan to release the lot from the lien of the mortgage, in consideration of his own bond to the mortgagee as a security for the payment of the debt of the mortgagor.

On this state of facts we do not feel called upon to decide what would be the law of the case if Davis had been an entire stranger to the appellant, without any authority to interfere with the mortgage. Were it conceded that a judgment upon a mortgage, obtained by an attorney acting for the mortgagee, without warrant, either written or parol, may be treated as a nullity by such mortgagee, this is no such case. Such a judgment cannot, 'however, be regarded as void. It is regular on its face. It would seem that a mortgagor who actually paid such a judgment to the attorney of record, must thereby discharge the debt. In our practice warrants of attorney are not usually filed with a precipe for a writ, and authority to institute a suit is generally given verbally. And certainly a purchaser at a sheriff’s sale under such a judgment, without notice of a want of authority in the attorney, would be protected. As against the attorney, or even a purchaser who had knowledge of the unwarranted intrusion of the attorney, the mortgagee may doubtless avoid the whole proceeding.

But in the case before us, Davis was empowered to release the lot sold under the mortgage from its lien. The mode by which . the release should be effected was not prescribed. It made no difference to Whelan how it should be done. In whatever way it might be accomplished, he agreed to give up the lien of his mortgage, and consequently to remove it out of the way of Williamson’s judgment. Eor the lien of the mortgage he received Davis’s bond as a substitute, and that bond he still holds. The scire facias on his ’mortgage and the sale under it, together constituted one mode by which the lot was released, a mode most beneficial to the mortgagor, and not hurtful to the mortgagee, for it put him in the same situation as to the lot as if his agent had executed for him a technical release. How, then, can he say that the sale under his mortgage does not affect him ? What right has he to *335treat the lot any longer as' bound by the lien of his mortgage ? Can he agree that it should be released, receive a consideration for the release, a substitute for the lien commensurate with the entire debt, and still be permitted to say that there has been no release, that the judgment and sale under it are nullities as to him ? The facts found by the auditor must be considered together, and thus taken they do, in our opinion, exhibit an agency in Davis for the appellant so extensive that we should not be justified in holding the sale under the mortgage entirely unwarranted, though there was no formal power to institute the suit. It follows that the proceeds of the sale were correctly treated by the auditor and court below as satisfying the mortgage pro tanto.

The decree is affirmed.