46 N.C. 169 | N.C. | 1853
The case was, the plaintiffs obtained a judgment, and took out an execution, which was levied on the land of the defendant in the execution, one John Overton. An order of Court was had for a sale of the land levied on; a sale made by the Sheriff, to plaintiffs, and a deed to them in the ordinary form.
Before this levy by the constable, the said Overton had conveyed the same land to a trustee, to secure certain debts of his, due to one Howell, and at the time of the levy and sale, these debts were still unpaid, but no sale had been made by the trustee. His Honor being of opinion that the plaintiffs had no legal title in the premises, the plaintiffs submitted to a non-suit, and appealed. Possession is necessary to sustain the action. The plaintiff had not actual possession, and the question is, did he have the legal title, which draws to it the possession? The resulting trust of a debtor, who has conveyed land in trust, for the payment of creditors, is in the nature of an equity of redemption, and may be sold at execution sale, under the act of 1812. The plaintiff's title, is that of a purchaser of such an interest or equity of redemption, and the act of 1812 directs the sheriff to set out in his deed, that the land, at the time of the sale, was under mortgage, so the deed of the plaintiff shows upon its face that he is entitled only to the equity of redemption. It is difficult to conceive of any ground upon which he can maintain the position that he has the legal title: clearly, the legal title is in the trustee, and it involves a manifest incongruity to suppose that it is also in the plaintiff. The only way in which he can get the legal title, is to redeem or pay the debts secured in the deed of trust, and call upon the trustee for a conveyance. This he has not done, and consequently he has not the rights of the legal owner.
The plaintiff's counsel relied on DAVIS v. EVANS, 5 Ired. 525. That was ejectment by the purchaser of an equity of redemption, at execution sale, against the defendant in the execution. It was held, that the plaintiff could recover, owing to the peculiar relation which, by force of the act of 1812, exists between the parties, giving to the purchaser the right to require the possession to be surrendered by the debtor, who cannot be heard to say to one who has paid his debt, that he had no interest; to this extent, and for the purpose of enabling the purchaser to recover the possession from the debtor, the Court supposes that the purchaser takes a legal interest under the act of 1812, notwithstanding the legal ownership of the trustee; but the fiction is expressly confined to an action of ejectment between the parties, and *171 cannot be extended to affect any other person, or to support a any other action.
Judgment affirmed.