The opinion
Cranch, C. J.
delivered the opinion of the Court.
The bill does not charge Mr. Adams with notice of the complainant’s claim at the time of his taking the mortgage. The answer of Mr. Brown is not evidence against his co-defendant Mr. Adams, and therefore cannot charge him with notice of any terms of sale different from the printed terms; and if it were, yet evidence of verbal declarations of an auctioneer at the time of the sale ought not to be admitted to contradict the printed conditions. Gunnis et al. v. Erhart, 1 H. Bl. 289.
The fact, therefore, must be considered as established, that Mr. Adams purchased the property at the trustee’s sale, subject only to his own incumbrance; and that, if any prior incumbrance existed the trust fund was bound to pay it off, or to vacate the sale and refund his purchase-money and expenditures.
The Court is of opinion that the complainant has the first in-cumbrance; and .that although Robert Easter, at the time of executing his deed to Henry Addison had no legal title, yet that when he subsequently acquired a legal title, it enured, (by means *146 of the estoppel in Ms deed) to the benefit of the complainant, whose trustee, H. Addison, thereby acquired the legal estate as against all persons claiming by or through Robert Easter; and that the property of the insolvent, Robert Easter, not having been sold expressly subject to the complainant’s claim, the purchase-money ought, in the first place, to be applied to the discharge of that incumbrance.
Decree accordingly.