The opinion
Hr. Justice Dickey, dissenting:
I can not concur in this decision or in the views expressed in the opinion. In mv view of the case, an assignee of a mortgage or trust deed has no higher equity than his assignor, the mortgagee, or beneficiary named in the trust deed, had. When such assignee comes into a court of equity to foreclose, he merely asserts for his benefit the equities which his assignor-had. In such case, where the mortgage or trust deed was given to secure part of the purchase money for land which his assignor conveyed, with full covenants of title, to the mortgagor, or maker of the trust deed, and it appears, at the hearing, that the vendor to an undivided fifth part of the land sold and conveyed had merely a voidable title—and a title which, at the time when he or his assignee seeks the aid of the court in foreclosing, remains imperfect and liable to be destroyed— equity demands of such complainant that he should forbear in the collection of a suitable portion of the purchaser until the title to this undivided one-fifth shall be made good. He that seeks equity must do equity; and this position holds good in favor of any subsequent grantee of complainant’s assignor, who bought the land on the faith of such covenants. This is the true doctrine in a court of equity, whether the covenants are such as technically run with the land or not. It is sufficient that such grantee is a privy to the estate and is injured by the breach of the covenants. It follows that, on the cross-bill in this case, the foreclosure should not have been for the whole of the unpaid purchase money, but an amount sufficient for indemnity should have been postponed until the perfection of the title to the whole, and the foreclosure should have been for the balance only.