I concur with my brethren on the main point; but I am of opinion that the decree is erroneous in dismissing the hill as to the appellees; because, though they have preference, yet this being, in effect, a bill by a judgement creditor to redeem prior incumbrances, they should be a party to the decree. To sell an equity of redemption at public auction, subject to a deed of trust, the amount due upon which cannot be known, as the original debt may have been reduced by payments, is inadmissible. Whoever purchases must purchase at hazard, and of course the sale must always be a sacrifice; ruinous to the mortgagor, or perhaps to other creditors. In such cases, it is therefore always proper that the junior incumbrancer should convene all the prior incumbrancers before the court. Gilm. 133. There is a further reason, I think : as a general rule, sales ought not to be made where the legal title does not pass by the sale. Purchasers of equities always purchase at risque, and sales at risque always tend to sacrifices. To decree a sale at risque would seem, indeed, at variance with the principles of the court, though I will not say no case can occur in *436which it would be permitted. My opinion is that the decree should be reversed, with the intimation however of the opinion of this court, that the cestuis que trust creditors have a preferable right to payment.

Decree affirmed.

The principal argument relied on by the counsel for the appellants, was, that when the deeds of trust were executed, the property was subject to the lien of the judgement recovered by Rogers fy brothers against Imub, and passed, thus incumbered, to the trustee, Marshall; and that the subsequent issuing of the ca. sa. upon the judgement, and the service thereof upon Lane, did not affect the lien of the judgement: for, though it was admitted that the issuing of the ca. sa. and taking the body of the debtor in *432execution, would, at common law, have destroyed the lien of the judgement, which springs from the capacity of the creditor to take out an elegit, it was contended, that the provisions of our law of executions changed all this, by making a ca. sa. wjien levied, a lien on the whole estate of the debtor, real and personal. The judgement, it was said, bound half of the land to the moment of levying the ca. sa.; and how, it was asked, could that destroy the lien on the half, which gave to the same party a lien on the whole % It is, certainly, the rule of the common law, that if the debtor’s body be taken on a ca. sa. it is a satisfaction of the debt, and the creditor can have no other execution, and especially he cannot have an elegit. The few exceptions to this rule, as was justly said by counsel in the argument of Jackson v. Heiskhell, “ are founded on after circumstances, which defeat the effect of the process, and disappoint the creditor of that satisfaction, which the law supposes such process to afford; as rescue, escape, or death of the debtor in execution.” The authorities for this doctrine are cited in that case. In that case, too, the judgeá who were inclined to give the ca. sa. lien the greatest extent (and whose opinions for going so far, have been since overruled, Foreman v. Loyd, 2 Leigh 284.) admitted, that no creditor, after taking out a ca. sa. and getting it executed, could stand upon the lien of the judgement.

The appellants’ counsel relied upon the decision in the case of Fox v. Rootes; on that point in the case, where the court, in comparing the liens of the creditors under the decree, and the purchasers under the deed of trust, did not consider the deed as destroying the lien of the decree creditors, though they had sued out writs of ca. sa. on their decree, on which, the debtor’s body bad been taken in execution, and he was discharged on taking the oath of insolvency under the act for the relief of insolvent debtors. It might be a sufficient answer to that case, to say that, according to the rule of this court, it is not authority; being the decision of a majority only of a court of three judges: but, *433in justice to my brethren, with whom I sat and from whom I differed as to that point, I must observe, that they by no means intended to lay down this as general doctrine, but simply as the result of the peculiar circumstances of that case. This is apparent from the language of the decree, which is as follows : “ It appears, that most of these creditors [the creditors by decree] have issued writs of ca. sa. on one of their instalments, which have been served on Rootes, and under which he has taken the benefit of the insolvent debtor’s act. It is the opinion of a majority of the court, that this proceeding cannot, in a court of equity, postpone these creditors as to that instalment, to the purchasers under Fox’s deed; because that deed being made for the security both of the purchasers and these creditors, whatever effort the latter made to procure from another source, satisfaction of their decree, was an effort to assist and benefit the purchasers, by lessening the amount for ivhich their security was liable.”

Another objection to the decree was, that it dismissed the bill of the plaintiffs as to the appellees, instead of keeping those parties in court, and superintending the sale of the mortgaged subject, and distribution of the proceeds, so that, in case of any surplus, it might have been applied to the judgement of these plaintiffs. The answer is, that the bill had no such object; it was brought simply to remove these deeds out of the plaintiffs’ way as fraudulent. It is too, apparent enough, that the fund was utterly inadequate to the satisfaction of the prior liens; and the knowledge of this, was probably the reason, why the plaintiffs preferred to take an appeal from the decree immediately, instead of asking the court to take management of the fund, and give them any surplus which might remain.

I think the decree must be affirmed.

I have been always surprized to hoar the case of Fox v. Rootes referred to as authority; at least, as to those points which received the sanction of two only of *434the three judges who sat in the case. This court consists of five judges; and although three of them, being a majority, constitute a court competent to decide any case which may be brought before it, yet a point decided on the opinion of two only of the three judges so constituting a court, is never regarded as authority; such opinion decides the case as between the parties, but does not settle the law of the land. In consequence of this well established principle, the case of Fox v. Rootes, though most elaborately and ably argued at the bar, and most gravely considered by the court, was directed not to be reported ; and such was the diversity of opinion among the judges, the majority consisting on some points of one set of judges and on others of another, that they determined not even to deliver their opinions in court, but simply to embody in the decree, the points, on which the court, or a majority, were found to agree.

That case has been referred to in the argument of this, as establishing the general principle, that a person obtaining a judgement, and having a ca. sa. levied on the body of his debtor, who is duly discharged under the insolvent law, still has the benefit of the lien of his judgement, so as to overreach an incumbrance created by the debtor between the date of the judgement and the levy of the execution. I sat in Fox v. Rootes, and was one of “ the majority of the court, who thought that, under the circumstances of the case, the creditor by decree, who had resorted to the ca. sa. and had pursued bis debtor to insolvency, did not lose the lien of his prior decreeand I well remember, that I came to that opinion, not as the result of any general principle, but as the result of the particular circumstances of the case. Indeed, this is manifest from the language of the decree itself, as has been shewn by my brother Carr. Whether the circumstances relied on by the majority of the court, justified their opinion on that point, it is not material to inquire, there being no such circumstances in the case now before us. ■ We have now nothing to decide but the general principle ; and I am clearly of opinion, as I was when I decided *435Fox v. Rootes, that, in the absence of particular circumstances, a creditor who resorts to his ca. sa. and pursues his debtor until he is discharged under the insolvent act, loses the lien of his decree or judgement; that particular lien being merged in the superiour lien of the ca. sa. executed, and being forever discharged by the ca. sa. having had its full effect.

I, therefore, think the decree before us was right, as to the main point in the cause. And I concur with judge Carr, for the reasons given by him, as to the propriety of the dis-mission of the bill. If there is really any probability that a surplus will remain after the satisfaction of the creditors under the deeds of trust, the appellants will be at liberty, notwithstanding the dismission of this bill, to institute a new suit for the purpose of reaching it. I am for affirming the decree.