Threadgill v. . Redwine

Smith, C. J., (after stating the facts). Now, while the transfer under the deed of the sheriff of the plaintiff’s undivided moiety to the purchaser, could not and did not carry the plaintiff’s equities, and rights springing out of their mutual covenants, as the numerous authorities cited in the argument for the appellant show, Tally v. Reed, 74 N. C., 463; Love v. Smathers, 82 N. C., 369, and others, it is nevertheless true, that the estate passes, subject to and charged with the equities of the defendant attaching thereto, for such *245 is the effect of a sale under execution, and it transmits only the debtor’s estate, in the plight and condition in which he held it. Flynn v. Williams, 1 Ired., 509; Giles v. Palmer, 4 Jones, 386; Smith v. Smith, 72 N. C., 228; Lewis v. McDowell, 88 N. C., 261. The covenants as to the disposition of the proceeds of sale, .so far as they inure to the advantage of the plaintiff, did not therefore pass to the purchaser at the execution sale, nor were they extinguished, through any supposed union with the legal estate, when he conveyed it to the defendant. The execution of the agreement in its literal terms became impracticable by the divesting of the moiety of the property out of the plaintiff, but this difficulty was removed, and the ability to give it effect restored, by the defendant’s acquirement of that moiety, whereby he became sole owner. The several equities have been reunited with the legal estate, and the effect of the dissociation no longer remains as an impediment in their recognition and enforcement. But the ■expense incurred by the defendant is a paramount charge on the interest acquired, and it must be paid before the agreed mode of apportionment of the fund received upon the sale to the last purchaser, out of the plaintiff’s share as well as the amount paid in removing an incumbrance common to the whole property. We therefore declare that there is error in the rulings upon the exceptions, and in the rendition of judgment against the plaintiff. The cause will be remanded, to the ■end that the judgment be reversed, and such further proceedings had therein as are in accord with the law declared in this opinion. Error. Reversed.