Hinton v. . Whitehurst, Adm'r. .

Reade, J. This case has been twice before this Court heretofore- — 68 N. O. Rep. and 71 N. C. Rep. It is now before us upon the following points : 1. There having been partition of the land among the defendants as heirs at law, some of whom have sold and some of whom have retained their shares ; and it having been decided that the plaintiff creditor has the right to subject the land *161 which has not been sold, and the proceeds of what has been sold, to the satisfaction of his demand, one of the defendants who has not sold, asks that he may be permitted to pay his ratable part of the debt, and retain his land. That cannot be allowed; because, as has been decided, the creditor has the right to subject the land itself. And if that defendant has more than a ratable part of. the land,..the whole value of that part of the land must be applied to the debt, if necessary. 2. The same defendant asks, that if he must account for the whole value of his share of the, land,'- and not for his ratable part of the debt, his share of the land may be valued by a commission to be appointed by the Court, and to be allowed to account for the value, instead of having the land sold in the usual way at auction. • ■' The reason which he gives for that request, shows that it ought not to be granted, to-wit: That the creditor will make the land sell for more than he, the defendant, is willing or able to give. While the interests of the defendant are not to be capriciously interferred with, yet- the interests of the creditor are paramount, and he is entitled to the usual process for realizing the best price for the land — which is a sale to the highest bidder. If the sum which the defendant offers to pay would satisfy the debt, then of course there would be no necessity for a sale, and it would not be allowed. 3. Another of the defendants, who has sold his share of the land for more than his ratable part'of the debt, asks that he be required to pay only his ratable part of the debt. It has been already substantially answered, that that cannot be allowed. Just as the land would have been liable if he had not sold, so the proceeds of sale are liable to the full amount. The proceeds represent the land. 4. A defendant who has received no rents or other profits, and whose share of land is liable, asks that other defendants who have received rents or interest or other profits, may he compelled to account for such profits, to the relief of his land. *162 It was decided when the case was here before, that that could not be done in favor of the plaintiff creditor, because he does not ask it in his complaint. How it may be as among the defendants themselves, the case as presented does not enable ns to determine. It is a principle in equity, that where several are liable in common, “ equality is equity but then the defendants have already had equality of partition, and whether that does not satisfy all equities among them is worthy of consideration. In what we have said, it is assumed that the whole of the land unsold, and the whole proceeds of what has been sold, are required to pay the debt. There is no error. This will be certified. Pee. Cubiak. Judgment affirmed.