Whitesides v. Williams, 22 N.C. 153, 2 Dev. & Bat. Eq. 153 (1838)

Dec. 1838 · Supreme Court of North Carolina

22 N.C. 153, 2 Dev. & Bat. Eq. 153

MOSES WHITESIDES, et al. v. DAVID WILLIAMS and DANIEL ALLEN.

An equity of redemption in a mortgage of slaves or other personal property, is not in law subject to an execution, the act of 1312 (1 Rev. Stat. ch. 45, sec. 5,) extending to the equity of redemption in lands only.-

A party having a mortgage on a slave, will not, at the instance of a subsequent purchaser, be prevented from foreclosing it, upon the ground that he had another fund out of which he might obtain satisfaction, if that fund had not in fact been assigned, but had only been agreed to be assigned to him by the mortgagor, and the person who held the fund was no party to such agreement.

The bill was for a foreclosure of a mortgage. The defendant Allen purchased a slave named Ned, and other articles at a sale made by the administrators of one Littleton Patillo. Allen was one of the distributees of the personal estate of Patillo; and at the sale he requested the plaintiffs to be his sureties in a bond to the administrators, promising them that the administrators might retain his distributive share to satisfy the bond when it became due. The plaintiffs refused, unless, in addition thereto, the slave Ned should be mortgaged to them as a counter security for their liability. Upon this Allen executed the mortgage for the slave to the plaintiffs, and then gave the bond to the administrators, signed by the plaintiffs as sureties. Allen afterwards assigned bis distributive share to a third person, and became insol-veni- A creditor of Allen, had an execution levied upon his equity of redemption in the slave Ned, when it was sold by the Sheriff, and the defendant Williams became the purchaser. The plaintiffs were sued upon Allen’s bond to which they were sureties, and were compelled to pay the whole amount of it. The bill sought to have the mortgage foreclosed, and that the slave should be decreed to be sold, and the plaintiffs indemnified out of the purchase money.

,The bill was taken pro confesso as to Allen. Williams answered, and insisted that the plaintiffs should look first to Allen’s distributive share for indemnity, and if that fund failed, then they might resort to their mortgage to supply any deficiency.

No counsel appeared for either party.

Daniel, Judge,

after stating the case as above, proceeded: We think thei'e are two answers to the defence of Williams. First, the equity of redemption in a mortgage of slaves, is not in law subject to an execution. The Sheriff had no authority to levy on it, therefore he could transfer no title or interest to Williams as purchaser under his sale. The equity of redemption in lands is liable at law to an execution by force of the act of Assembly, 1 Rev. Stat. ch. 45, sec. 5, but the redemption of slaves or other personal estate, is not embraced in the act. Secondly, Whitesides, by the mortgage has the legal estate in the slave ; and this Court would not prevent him foreclosing his mortgage and compel him to look to the distributive share which had never in fact been assigned to him, but rested only on Allen’s agreement to assign, the administrators being no parties to that agreement ; this is not a reason sufficient to prevent a foreclosure. There must be an account taken, and if the defendants do not redeem by a day to be fixed, the slave must be sold and the plaintiffs’ debt and cost paid out of the purchase money.

Per Curiam. Decree accordingly.