Hinsdale v. Thornton

74 N.C. 167

Opinion

Peakson,- C. J.

The plaintiff acquired nothing by the two deeds of the Sheriff, for the plain reason that the defendants, in the execution, had no estate or interest that could be sold under a scire Jodas. It is the general rule; nothing but a legal estate can be sold under a fi. fa.. See the matter discussed ; Tally v. Reid, 73 N. C., 336, affirmed at this term on petition to rehear. That the sheriff, under his writ, can. sell nothing but a legal estate,, is shown by its words, “ of the-.goods and chattels, land and tenements,” &c. “Lands and 'tenements” imply tbe ownership at law. Such has been the me ming of these words ever since the statutes of ■aiortmaiv, -and the time of the conflict between the houses of York and Lancaster. The law takes no notice of uses and trusts nor -of equities of any kind, except as is otherwise provided for by statute. An exception is made to the general rule by the act of 1812, which subjects equities of redemption and trusts to sale under a fi. fa. Under this statute it is settled, that when a vendee pays a part of the price, and takes bond for title when the balance is paid, his interest or trust cannot be .-sold under fi. fa. When a purchaser takes a bond for title, it would seem to be as strong a case as when he takes a paper writing, purporting to be a deed, but which can only be allowed the effect of an agreement to make title, or as furnishing the ground to have the instrument converted into a deed on the ground of mistake, which could hardly be allowed except on payment of the balance of the price; but however this may be, the vendee did not acquire the legal estate, and at most, had only an equity, which certainly does not come within the operation of the act of 1812.

No error.

Peu CuRxam. Judgment affirmed.