Craik's Administrators v. Clark, 3 N.C. 22, 2 Hayw. 22 (1797)

Nov. 1797 · North Carolina Superior Court

3 N.C. 22, 2 Hayw. 22

Craik's Administrators vs. Clark.

bill stated, that Craik in his life borrowed of Clark five hundred dollars, and mortgaged several negroes as a security for the repaj'ment of that sum with interest, and afterwards both died, and that Craik’s administrators since his death had tendered the principal sum and interest; the answer stated that Craik in his lifetime was further indebted to Clark in the sum of one hundred pounds, not secured by mortgage and that the plaintiffs ought not to be permitted to redeem without payment of that sum also: the plaintiffs replied, that they themselves were creditors of Craik, and entitled to be paid by retainer in preference-to any other creditor.

Hoyzveod, Judge.

An heir cannot redeem without payment, of a specialty debat by the English law, because when he redeems-, he instantly1' has assets to satisfy the specialty debt, but I do not recollect any case to shew the executors are in the same situation ; they would, it is true, have assets upon redeeming, but those assets may be liable to debts of a superior nature to that of' the mortgage ; and the thing redeemed, though assets, might not be assets applicable to the satisfaction of the morgagees debt» We will delay giving an opinion for the piesent, but it may be-mentioned again to-morrow.

The nest day Mr. Moore cited 1 P. W. 776, and some cases, from Powell on Contracts, and thereupon the court decreed a. redemption upon payment of the mortgage money, and of the hundred pounds with interest upon both sums»