Opinion
July Term, 1809.
An equity of redemption cannot be sold by virtue of an execution at law.
ALLISON being indebted to Gregory Sons, of Charleston, mortgaged to them a house and lot in the town of Hillsborough, to secure the payment of the debt; and being also indebted to one Armstead, he was sued by Armstead in Edenton Superior Court, and judgment was obtained against him; upon which judgment an execution was issued, directed to the Sheriff of Orange County, who levied it upon the aforesaid house and lot, and at the sale Kirkland became the purchaser. Some time after the purchase Kirkland filed a bill against Gregory Sons, for the purpose of redeeming the house and lot as to (334) them, and against Pratt and Taylor, who had purchased from Allison other parts of the property mortgaged to Gregory Sons, for the purpose of compelling them to pay their proportional parts of the money due on the mortgage. Gregory Sons filed a bill to foreclose the equity of redemption, and Allison filed a bill against Gregory Sons and Kirkland, to redeem the house and lot. To Allison's bill Kirkland demurred, and the question arising upon the demurrer was, Whether Allison's equity of redemption in the house and lot was liable to be sold under an execution at law.
From Hillsboro.
An equity of redemption cannot be sold by virtue of an execution at law. Allison is therefore entitled to redeem, but Kirkland should stand in the place of Armstead, whose debt he satisfied, and is entitled to have his money, with interest thereon, refunded by Allison, he being accountable to Allison for the rents and profits of the house and lot during the time that he has had them in possession.
The General Assembly in 1812 passed an act subjecting an equity of redemption to sale under an execution at law.