McPeters v. English.

*493 Connor, J., after stating tbe facts: In the well prepared briefs of counsel for both parties, while it is conceded that there is but one exception, quite a number of points are discussed. We notice them only because we think there is some misapprehension of the real question involved. There can be no controversy that the justice had jurisdiction to render judgment for the balance due on the note for the purchase money of the land. This is clearly held in Patterson v. Freeman, 132 N. C., 357, and upon this judgment execution coxild issue against any property of the defendant other than the land for the purchase price of which it was given. For reasons hereinafter pointed out, no sale could be had, under execution issued upon this judgment, of the land for the purchase price of which the note was given. This is so, not because it is a justice’s judgment; the same result would follow if the judgment had been rendered in the Superior Court. The fact that the note was given for the purchase money does not entitle the plaintiff to sell the equitable interest of the vendee. If the contract had been executed 'and a title made to the grantee, a judgment upon the note given for the purchase money thereof would have been collected by a sale of the land, and under the constitutional provision no homestead would have availed against such sale. We concur with the plaintiffs that testimony was competent to show the consideration of the note, although as pointed out, the statute prescribed the manner in which the judgment should be rendered, showing the consideration to have been the purchase money. These questions, however, do not in any manner affect the merits of this controversy. The difficulty with the defendants’ title lies in the fact that McPeters had no such interest in the land as could be subjected to sale under an execution upon a judgment rendered for the purchase money. As between the parties, the relation of vendor and vendee has always been held to be substantially that of mortgagor and mortgagee, and it has always been held with unbroken uni *494 formity that the mortgagee could not subject the equity of redemption of the mortgagor to sale for the mortgaged debt. This was first held in Camp v. Coxe, 18 N. C., 52, in which Ruffin, C. J., points ont with great clearness the reasons upon which the exception to the Act of 1812, Revisal, section 629, is based. He says: “It would not only open the door for oppression, and invite to it, but such a sale is in every case against the contract of the parties, as understood in a court of equity. That court relieves even against agreements between persons in a fiduciary relation, upon a principle of policy, to prevent frauds; much more ought it to protect one person, in the power of another, from loss by the use of a legal advantage, contrary to the agreement. The contract here was that the mortgagor might redeem. Will the court allow the mortgagee to cut him off from that equity at short hand? Such a position cannot be tolerated, nor could the Legislature have intended it. The act did not mean to interfere with the stipulations of the parties, as they might affect them, either at law or in equity. * * * If he is not satisfied with his security, the mortgagor’s person and other property áre open to him. Let him resort to them; but against the estate on which he has taken a security he ought not to act, but upon the footing of that security, and according to its terms in their established sense.” Simpson v. Simpson, 93 N. C., 373; Myrover v. French, 73 N. C., 609. This doctrine is too well settled to require further citation of authority. See also Tally v. Reid, 72 N. C., 336, and Mayo v. Staton, 137 N. C., 670. We are of the opinion that His Honor’s instruction was clearly correct and the judgment must be Affirmed.