The opinion of the Court was delivered by
The complaint demanded the foreclosure of a mortgage by Gill to the plaintiff, Wylie. The mortgagor being dead, his representatives were made parties, also certain judgment creditors of the mortgagor, among whom was S. W. Mobley, the present appellant.
S. W. Mobley answered and set up a judgment against both the mortgagor and the mortgagee as a lien on the mortgaged premises alleging the estate of Gill, the mortgagor, to be insolvent, and demanding judgment “that the proceeds of the sale of the mortgaged premises left after paying the costs of action for foreclosure, or so much as might be necessary, be applied to the satisfaction of this judgment.”
A decree of sale and foreclosure was taken, reserving the rights of S. W. Mobley. On the hearing of the matters thus reserved, it appeared that there were unsatisfied judgments against both mortgagor and mortgagee older than the judgment of the appellant, Mobley.
Thereupon the Circuit Judge made an order entitling the plaintiff, Wylie, to receive the whole proceeds- of the sale of the mortgaged premises. From this order S. W. Mobley appeals. Subsequently to the making of this order, the mortgaged premises were, sold and brought an amount less than, what was required to pay the mortgage debt.
It is not clear how the order appealed from could have been made before it could be certainly known whether the proceeds of the sale would discharge the mortgage debt, but the only question before us *206is, whether S. W. Mobley, the appellant, is prejudiced by it. We do not see that he is in any respect prejudiced. There was no surplus, and accordingly the plaintiff, as mortgagee, was entitled to the whole proceeds of the sale. S. W. Mobley now claims that the moneys applicable to the payment of the mortgage debt ought to be paid to him. He places this demand on two grounds, first, that he is an unsatisfied judgment creditor of plaintiff, and, second, that, in addition to this fact, he was a judgment creditor of the mortgagor, with a lien on the mortgaged premises.
The reasonings by which he seeks to establish these demands will be very briefly noticed, as the want of a proper answer is in itself fatal to him.
He claims that, as he was made a defendant to the foreclosure suit, he has a right to come in with any matter of defense or counter-claim, and that, in virtue of this right, he now claims to stand in the same position as if he had commenced an action against the plaintiff in the nature of a creditor’s bill on his unsatisfied judgment. In other words, he claims that he has a right of action against the plaintiff in the nature of a creditor’s bill to compel a discovery and application of assets to the payment of his judgment; that his position as defendant authorizes him to interpose by way of counter-claim such cause of action.
It will be hardly necessary to consider whether a judgment creditor can, at this time, resort to an action in the nature of a creditor’s bill in cases where the remedy afforded by Section 318 of the Code is appropriate and sufficient; for even if such a right exists, as we shall see, the appellant is not in a position to exercise it. It may, however, be said that the Section of the Code just referred to, in giving a summary remedy by a statutory proceeding in the nature of a creditor’s bill, has afforded a legal remedy so full and inexpensive that no good reason exists for resorting to a remedy for the same purpose by complaint, attended as this latter remedy is with greatly increased delay and expense.
Had the appellant the right at the time of interposing his answer to commence an action against the plaintiff in the nature of a creditor’s bill, still it is clear that he could not avail himself of that right by way of counter-claim or cross-proceeding in this action. He was made a party for a single purpose only, namely, that as a judgment creditor'of the mortgagor, having an equity to re*207deem the mortgaged premises from the mortgage debt, he might have an opportunity to exercise such power of redemption, and, failing to do so in time, that he might be barred and foreclosed of such right of redemption.
The plaintiff made no demand for any judgment or decree except as to the matter of his right to redeem the mortgaged premises, and gave him notice accordingly. It was not necessary that appellant should answer the complaint. Without an answer he could come in and prove his judgment as against any surplus, after payment of the mortgage debt. An answer could not by any possibility prevent his equity of redemption from being barred if he did not come forward and redeem. The appellant in answering must therefore be regarded as a volunteer. Under the circumstances the answer must be regarded as formal merely, and as setting up no new or specific equities. — See Code, § 154. The answer did not contain the averments that are essential to a creditor’s bill, namely, that execution had been issued on his judgment and returned unsatisfied. Nor did it demand any of the remédial means characteristic of a creditor’s bill.
There is no ground whatever for the claim of the appellant that he is entitled to reach the proceeds of the sale of the mortgaged premises in the hands of the mortgagee on the idea that he has the rights of a judgment creditor who has exhausted his remedies at law.
It was claimed in behalf of the appellant that the remedy given by Section 318 might be taken in the present form, namely, by way of defense to an action, by averments in the nature of a creditor’s bill. This is an entire misconception of the remedy afforded by Section 318. The chapter in which that Section occurs is entitled “Proceedings supplementary to execution.” The object of the Section was to give a summary remedy based directly on the judgment and supplementary to the proceedings terminating in the judgment. This is a special statute remedy, and must be taken in the form in which it is given. To allow by way of defense a counter-claim to legal and equitable demands, and in favor of defendants only incidentally and collaterally brought in, the interposition of a defense in the nature of a creditor’s bill, would be inconsistent with the intentions of the Code and introduce intricacies in pleading and procedure productive of the greatest inconvenience.
*208The remaining ground on which appellant seeks to sustain his demand for the mortgage money is that he had a lien on the mortgaged premises that precluded plaintiff from getting the benefit of his mortgage without demanding and obtaining against the appellant equitable relief in the form of a decree foreclosing his equity of redemption; that plaintiff cannot have such relief except upon the condition of doing equity; and as appellant is a judgment creditor of plaintiff, the equity that was due to him as the condition of the plaintiff’s receiving the relief that he claims was that the whole proceeds of the mortgaged premises should be turned over to him as payment on his judgment. In making this demand the appellant considers that it is altogether unimportant that there are other older and unsatisfied judgments against both the mortgagor and the mortgagee.
The foundation of this theory is altogether wanting. Plaintiff asks no positive, equitable relief against the appellant. He makes him a party simply to afford him an opportunity to exercise his power of redemption, and demands nothing but the formal decree, barring his equity of redemption if he does not choose to redeem. There is no reason for attaching any condition to the customary relief demanded by the plaintiff, nor does appellant show any equity entitled to the peculiar protection of the Court of Equity. He is simply a legal creditor, not even alleging the inadequacy of the legal remedies to satisfy his judgment. The only equity that his answer sets forth is his demand upon the surplus, if any there should be.
The answer of the appellant does not warrant the relief sought by him, and his motion must be denied.
Moses, C. J., and Wright, A. J., concurred.