Guthrie v. Sorrell's Heirs

41 N.C. 13

• Court: Supreme Court of North Carolina
• Decided: June 5, 1849
• Status: Published

Opinion

Pearson, J.

This is a bill to redeem a tract of land, which is under mortgage. It was intended to present the very interesting question, whether one, who has taken a deed, absolute upon its face, but with the understanding that it is be a security for certain debts, to be liable to redemption, and who purchases the interest of the mortgagee at execution sale, at the instance of a creditor, not secured by the mortgage, takes an absolute estate, or merely acquires the right to add the amount of his bid to the debts secured by the mortgage l

This would have been a grave question, and one well worthy of consideration ; but we are not at liberty to entertain it, because the proper parties are not before us.

In a bill to redeem a mortgage, the personal representative of the mortgagee is a necessary party. He is the person entitled to receive the money, and must necessarily be a party in taking the account.

The bill must be dismissed for the want of a proper par ty, and, of course, without prejudice, but at the costs of the plaintiff. It has been pending six 3-ears, and it has been in this Court more than three years, awaiting the motion of the parlies.

Per Curiam.

Bill dismissed.