Whitesides v. Williams

22 N.C. 153

• Court: Supreme Court of North Carolina
• Decided: December 5, 1838
• Status: Published

Opinion

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.