Opinion
(January Term, 1815.)
An equitable right in land cannot be sold under an execution at law.
THE defendant had purchased, before 1777, an improvement on a tract of vacant land, and in 1778 duly made an entry. He was drafted before 17 April, 1780, to serve in the militia, which he failed to do, or to find a substitute; and being delinquent, on 24 June following, a warrant was on that day issued by the colonel of the county, and directed to the deputy sheriff, commanding him to sell so much of the defendant's property as would make the sum of £ 3,500. This warrant was issued under section 2 of an act passed 17 April, 1780. The deputy sheriff levied upon the entry above mentioned, and sold it publicly to Daniel Mitchell, who sold it to the complainant's father, who had the land surveyed and procured a grant to issue for it on 18 August, 1787, in the name of the defendant. The sheriff afterwards, in 1789, executed a deed to Payne, in completion of the sale by his deputy.
Nash for defendant.
Norwood for complainant.
The bill prayed a conveyance of the land or a repayment of the purchase money.
It is unnecessary to decide all the questions raised in this case, because we are satisfied that the law was correctly laid down in Allison v. Kirkland and alias, in this Court. It then follows that Mitchell acquired no legal title to the land under the purchase made by him at the sheriff's sale, because Hubbard himself had none. The latter purchased an improvement, which gave him only a right, in preference to others, to obtain a legal title from the State, towards which he had advanced so far as to make an entry. But the legal title remained in the State at the time of entry, an equitable title alone subsisting in the defendant, and this we have held could not be sold by execution.
Wherefore, the bill must be dismissed.
NOTE. — The case of Allison v. Gregory, 5 N.C. 333, decided that an equity of redemption could not be sold under an execution at law. But now it may, under the act of 1812, (1 Rev. Stat., ch. 4, sec. 5). Upon the construction of this act, see Moore v. Duffy, 10 N.C. 578; Harrison v. Battle, 16 N.C. 537; Mordecai v. Parker, 14 N.C. 425; Camp v. Coxe, 18 N.C. 52; Henderson v. Hoke, 21 N.C. 119; McKay v. Williams, ibid., 398; Thorpe v. Ricks, ibid., 613.