IN EQUITY.

#### Dozier v. Muse.

From Camden.

A. married L. a widow, who was entitled- to an undivided share of a deceased child’s estate ; and on the 18th of December, 1817, A. executed to the Defendant, a mortgage or assignment of all his interest in this undivided share, to be void on payment of a judgment, which the Defendant had against him.

The Complainant also had a judgment against A, and on the 6th of December, issued an execution on it, which was returned milla bona; and on the 13th of April, 1818, he issued another, under which, on the 17th of June, 1818, a levy was made on the property, mentioned in the assignment; and on the 17th of July, 1818, a sale of the property was made, by consent of Complainant and Defendant, under it, and under an execution which Defendant had issued on his judgment, which was also levied on the 17th of June, 1818. At this sale, by agreement of the parties, Defendant became the purchaser, reserving the question between them, to be settled by amicable reference to counsel. The counsel did not settle it. The division of the deceased child’s property, and the allotment to L. wife of A, of her share, took place on the 1st day of January, 1818. The bill was filed to compel the Defendant to account for the proceeds of the sale, made by consent, and was dismissed, because, though JJs share, while it remained undivided, could not be levied on under Complainant’s execution, might yet be assigned by A, in such man ner as to bind it.

The. bill stated tiiat Complainant had a judgment, obtained against one William Shaw, in Camden Superior Court, for ¿62097 11 2 $ that on the 6th of December, *483'íSIT-, execution issued, and was immediately placed in the bands of lac Sheriffs awl the Deputy Sheriff, Richard Pool, endorsed thereon that it came to Ins hands Janea-ry SOths 1818. and the execution was in the hands of the Sheris’or his deputys until the second Monday of the ensuing March» when it was returnable $ that William Shaw was said at that time to be insolvent, but had previously intermarried with oho Lydia Shaimonliousc, who was the widow of Ja raes L. Shannonhouse, by whom she had two children, Elinor and Elizabeth, living at the time of her intermarriage with Shaw; that after such intermarriage, aud shortly before the execution above spoken of issued, one of Use children, Elizabeth, died, an infant intestate, whereby the wife of Shaw became entitled to a moiety of the personal estate of Elizabeth, consisting of negroes, money, bands, &c.; that ihe Sheriff! believing lie might not lawfully levy the execution in bis hands, on this interest of Mrs. Shaw, returned the writ to March, 1818, endorsed “ sac property to be found tiiat Complainant issued another execution on the judgment on the 13th of April, í C i 8, and the officer endorsed thereon that it case to ids hands on the 15th April,-1818, and so remained until the Tib of July, 1818, and that he levied on the negroes 17th of June, 1818 j that at June term, 1818, of Pasquotank County Court, the Defendant, Muse, obtained letters of adnainiBtration on the estate of Elizabeth ñliannonhousc, and obtained cm order of Court to divide the negroes of his intestate, between Elinor Shannonhouse and Shaw,-in right of his wife j that this division took place within the same week, aud Muse procured an execution to issue from Pasquotank County Court, at his own instance, as executor of one BSoyd, and to be levied on the negroes by one Joshua Pool, who committed the negroes to prison and advertised them for sale; that on the 17 th of July, 1818, Richard Pool and Joshua Pool, by virtue of the respective executions, «net at the courthouse to sell the negroes, and both Complainant and lie-*484fentíaní attended ; that Muse produced a mortgage for the negroes, dated the 18th of December, 1817, to secure, the debt for which his judgment was obtained, and this execution had issued, and it was agreed between Complainant and Defendant, that each party should bid for the negroes, and that the money arising from the sale should be paid over to him to whom counsel, selected by the parties, should say the same belonged ; that under this arrangement, the negroes were bid off by Muse, and a return made on Complainant's execution accordingly ; that Muse was the purchaser, and that the money bid was not paid by the order of the Plaintiff; that the counsel selected by the parties did not .settle the question between them, and that Muse now refused to pay over the money, alleging that he had a perfect title by reason of his mortgage. ■

The answer admitting Shaw’s marriage with Mrs. Sbannonhouse, and Elizabeth’s death, stated that at December term, 1817, of Pasquotank Court, commissioners were appointed to divide the property of Elizabeth, and on the first of January, 1818, they did so, when the negroes alluded to in the bill were allotted to Shaw, and at the same term, the Defendant was made administrator to Elizabeth. It further stated that the D ■< ndant, as executor of one Boyd, being interested in a judgment against Shaw, obtained from Shaw on the 18th of December, 1817, an instrument conveying to the Defendant, as executor of Boyd, all the interest of Shaw to an undivided share of the personal estate of Elizabeth, with a proviso to be void, if Shaw should pay the judgment aforesaid : further, that the- Defendant was the executor of James L. Sbannonhouse, father of Elizabeth, and that all the negroes of Sbannonhouse, including those alluded., to in the bill, had remained undivided, and under Do,fen-., dant’s control as executor, up to the time of the division, on the 1st of January, 1818, and that William Shaw no-.

*485The Defendant admitted his having taken out an execu-iion on the said j udgment, which was levied on the negroes on the 17th and 18th of June, 1818, and that he bid them off at the sale as charged ; and further, that the agree - ment between himself and the Complainant, as to a reference of the question, and the result: of such agreement, was truly stated in the bill, and submitted that Ids title to the negroes, botli in Law and Equity, was good until the debt which they were conveyed to secure, was discharged.

JV'ask, Judge, who presided below, dismissed the bill, ordering eacli party to pay his own costs. — Complainant appealed.

Hall, Judge,

delivered the opinion of the Court:

If the. controversy in this case rested on the question whether the Complainant’s or the Defendant’s execution was best, no doubt could he entertained hut that the preference should be given to the Complainants; but the controversy really is between Complainant’s execution and the mortgage made to Muse.

The property conveyed by the mortgage, and levied on by Complainant’s execution, was part of the estate of Shannonhousc, dec’d, an undivided part of which, Wih iiam Shaw, in right of his wife, was entitled to ; but at Shat time it could not he levied upon by an execution against Shaw, it was not recoverable, except in a Court of Equity — no legal title vested in Shaw until the assent of the executor. But it was competent for Shaw to make such a disposition of it, while in that situation, as would, hind it — he has done so ; he has mortgaged it to secure the payment of a debt due by him, so that as it was not th© subject of levy by execution, but was legally conveyed to Muse by mortgage, the present bill brought to make Muse account for the proceeds of the sale made by fio» *ent. must he dismissed.,