On the trial the case was submitted to the court upon the following facts; and it was agreed that if the law thereon was for the plaintiff, he should have judgment for $414.23 and costs; otherwise he should be nonsuited.
Elijah W. Kinsey was indebted to Jones, the plaintiff, in the sum of $611, payable in six annual installments, with interest from 28 June, 1843; and on that day he executed to the plaintiff a mortgage of a tract of land in fee to secure the debt. The land was situate in Henderson County, and the deed was executed there during the term of the county court, in which a judgment was expected to be rendered in an action therein pending against Kinsey. Of the suit Kinsey informed Jones at the time he made the deed, and the latter undertook to pay the *Page 18 (13) judgment, should it be obtained. The judgment was rendered at that term, and a fieri facias issued thereon, under which the sheriff offered the land for sale. A bid was made by a person for it, and the plaintiff then offered to pay the money in discharge of the execution, but the bidder insisting on his bid, the sheriff refused to receive the money and proceeded to sell the land, when, after opposing bids by the first bidder and the plaintiff, the former became the purchaser at the price of $465, which exceeded the amount of the execution debt. The plaintiff, before and at the sale, gave notice to the sheriff and to the other bidder of his mortgage, and exhibited it publicly and claimed the land; and after the sale, he demanded the surplus of the money after satisfying the execution; but the sheriff refused to pay it to him, and, by agreement between Kinsey, the sheriff, and the purchaser, the surplus was retained by the latter in satisfaction of debts which Kinsey owed to him and others. Thereupon this action was instituted against the sheriff to recover the surplus as belonging to the plaintiff.
The court gave judgment for the plaintiff, and the defendant appealed. The Court affirms the judgment. The case is governed by Taylor v. Williams, 23 N.C. 249. It is even stronger than that case, for the good faith of the plaintiff's mortgage is not questioned. It passed the title to the land perfectly to the plaintiff, subject, indeed, to the encumbrance of a judgment, or, rather, the lien of an execution that might be issued on the judgment. The effect of that was that the land, although the property of the plaintiff, might be taken if necessary to pay that debt, but it could be taken for no further purpose. The sheriff might have sold an aliquot part of the land, so many acres, as would pay the debt; and in that case it is plain the part unsold would have been vested in the plaintiff under his deed. It follows that (14) the surplus of the proceeds belongs to him, for the sheriff cannot, by the mode of his proceeding, essentially vary the rights of the party. It is not material that the plaintiff has only a mortgage. That vests in him the legal title, with which only we have to deal in this action. Any equities between him and the mortgagor, or the assignee of the latter, if there be such under the circumstances, must be settled elsewhere.
PER CURIAM. Affirmed.
Cited: Alexander v. Springs, 27 N.C. 479; Williams v. Avent, 40 N.C. 50. *Page 19