1. No specific tangible property can be attached, which cannot be sold under the execution after judgment obtained.
2. Where an estate is vested in trustees, and the purposes of the trust require that the legal estate shall remain in them, the property so conveyed cannot be sold under execution, so as thereby to divest the trustees of their estate, or any part of it.
3. The owner of property attached is not obliged to interplead, though he may do so for the sake of convenience. A sale under an execution, issuing upon a judgment on an attachment, only passes the right of the defendant in attachment.
RUFFIN, C. J.
Very much for the reasons given in the full and satisfactory judgment of the counsel for the interpleaders, the Court is of opinion, that the judgment should be affirmed. Indeed, we think, that the interest of the wife in the negroes is not the subject of attachment at the suit of the husband's creditors: because no specific and tangible property can be attached, which cannot be sold under the execution, after judgment obtained. And we are of opinion, as stated in the argument, that the purposes of the trust absolutely demand that the legal estate should vest in the trustees; and, therefore, that the property cannot be sold under execution, so as thereby to divest the trustees of their estate, or any part of it, in the present state of the family. However, that question does not arise here on the record, as it stands; though we have thought it proper to notice it, in the hope of preventing unprofitable and vexations litigation. For, although the trustees have interpleaded for seven-eighths only of this share of the negroes, that will not conclude them as to the other eighth; since the owner is not obliged to interplead, though allowed to do so for convenience, and the sale under the execution only passes such right as the defendant in attachment has in the thing attached or sold.
PER CURIAM. No error.
Cited; Stein v. Cozart, 122 N.C. 282; Electric Co. v. Engineering Co., 128 N.C. 201; Johnson v. Whilden, 166 N.C. 110.
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