1. An equity of redemption in a mortgage of slaves or other personal property is not in law subject to an execution, the act of 1812 (1 Rev. Stat., ch. 45, sec. 5) extending to the equity of redemption in lands only.
2. 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 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.
DANIEL, J., after stating the case:
We think there are two answers to the defense 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 fixed, the slave must be sold and the plaintiff's debt and cost paid out of the purchase money.
PER CURIAM. Decree accordingly.
Cited: Hardware Co. v. Lewis, 173 N.C. 293.
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