Wilkinson County MsArchives Court.....Hunter, Henry June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

Pages 194-197

HENRY HUNTER’S Admrs. vs. WM. HUNTER & T. B. DOUGHARTY.

An equity of redemption is subject to sale, on an execution upon judgment in 
this State.

The interest of the mortgage is not the subject of the sale upon an execution 
issuing upon a judgment in this State.

OPINION OF THE COURT—BY THE HON. EDWARD TURNER.

This is a motion made, at the last May Term of the circuit court of Wilkinson 
county, for the application of money made by the sheriff on the sale of the 
property of William Hunter, against whom the sheriff held several executions; 
and among others, that stated above of H. Hunter’s administrators vs. William 
Hunter and T. B. Dougharty—-the latter being the security of William Hunter.

The following facts appeared on the motion being made:—That on or about the 
14th of January, 1823, William Hunter made his note of hand-with T. B. 
Dougharty security, for 1722 dollars, payable six months after date, to 
William Yerby, administrator of the estate of Henry Hunter, deceased-that said 
bond was given in consideration of slaves bought by William Hunter, of said 
administrator-that on the 21st of February, 1823, the said William Hunter 
mortgaged to said Dougharty, the said slaves, and a tract of land, being the 
same slaves and land levied on and sold under the above execution, to 
indemnify the said Dougharty for giving security as aforesaid.

That on the 8th of May, 1823, R. M. D. J. Elliott, obtained judgment against 
said William Hunter, for 104 dollars and 47 cents, besides costs—that on the 
13th of May, 1823, John Hudry obtained judgment against said William Hunter, 
for 407 dollars and 60 cents, besides costs—that on the 4th of May, 1824, 
James T. Crifford obtained judgment against said William Hunter, for 165 
dollars, besides costs—that on the 3d of February, 1825, Henry Hunter's 
administrators obtained judgment against said William Hunter and T. B. 
Dougharty his security, for 1942 dollars and 58 1-2 cents, besides costs, 
being the aforesaid debt, for which the bond or note first above named was 
given—that executions regularly issued on these several judgments after they 
were rendered—that Hudry's execution was levied on the land in question, but 
not sold previous to February 1825—that executions on all the above stated 
judgments issued, returnable to May Term, 1825; on all of which the sheriff 
makes the same return, which is in substance as follows, to wit:—That he 
levied on the 7th of March, 1825, on 449 acres of land, which was sold to 
James Quinn, for 500 dollars, and on 4 negroes, slaves, which were sold to 
William and Michael Dickson, for 1188 dollars, and there appearing a doubt 
which execution is entitled to the credit—-and being notified, as to the 
appropriation, that he held the money subject to the order of the court. It 
further appeared, that this property was surrendered by said Dougharty to the 
sheriff, to be sold to satisfy the execution of H. Hunter’s administrators vs. 
Hunter and Dougharty, aforesaid, and required the money to be applied in 
satisfaction thereof, and consented to the sale for that purpose, and that 
only—and it is admitted that W. Hunter is insolvent.

It does not appear to the court what time Elliott’s execution first issued, 
but it is conceded that the several judgments aforesaid, bind the estate of 
William Hunter from their respective dates, or if they do not, that executions 
thereon, having been in the hands of the sheriff previous to even the judgment 
of Hunter’s administrators vs. Hunter and Dougharty; they all have precedence 
of the latter, and must be first satisfied out of said proceeds of sales.

Upon this statement of facts, it is contended, by the counsel of T. B. 
Dougharty, that his mortgage bound this property, that as it was sold by his 
consent, to pay the debt for which the mortgage was given—that as it was 
produced and surrendered by him for that purpose, he is entitled to the 
benefit of the credit for the proceeds of the sale thereof, on the execution 
against Hunter and Dougharty.

On the other hand it is contended, that Dougharty, being but a mortgagee of 
said property, his interest therein was not liable to sale on execution—that 
Hunter's interest as mortgagor was liable to be sold; that the previous 
judgments and executions were a lien upon Hunter's interest in the mortgaged 
estate, and that the same being sold, and the money in the sheriff's hands, 
they are entitled to satisfaction; and they cite 4 Johnson's Rep. 41; 1 
Caine's cases in E. 47; 5 Johnson's Rep. 335.

The importance of this case is felt, more in relation to the danger of 
Dougharty's situation, than as it regards the legal principles therein 
involved.

If William Hunter was solvent, it would matter but little how the case 
resulted. But as he is insolvent, and Dougharty being likely to suffer 
innocently and to pay the debt of his principal when he had taken honest and 
timely steps to secure himself against his friendly act in going Hunter's 
security.

I have labored to find some ground or principle on which he can be protected. 
His case is worthy of the reflection and research which I have given it, but 
it is in vain. It is not in the power of this court under present 
circumstances to relieve him.

I will not say that his case is ultimately hopeless. He may yet find relief in 
another way, or before another forum; and although we cannot advise him as to 
his remedy, or whether he has any, we will not say to him that he has no 
rights, no remedy left. He appears to the court to have acted fairly in the 
transaction, but to have been ignorant of his rights. There can be no question 
at this day, but that an equity of redemption is liable to sale under 
execution. The plaintiffs in the former, or elder executions, had the right to 
require the sale of that equity and interest which William Hunter had in the 
aforesaid property, and having been sold, they are entitled to so much of the 
proceeds as will satisfy their several executions and costs. Henry Hunter’s 
administrators had also the right to sell the same equity, or what remained 
after satisfying the elder claims, and the sale having been one and entire, 
let the residue of the purchase money be applied to the credit of the last 
execution.

I consider the law equally well settled that the mortgagees' interest in
mortgaged property, is not liable to execution—that the sheriff could only 
sell and convey the equity of redemption of William Hunter; or in other words, 
all the right, title, &c. of William Hunter, in the land and slaves.

Let the money be applied according to the principles laid down in this opinion.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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