Philip Pendleton Barbour

“ The only interest which the appellant can claim in the property in question, is derived from the levy made by the officer under his execution, and the purchase made by him at the sale under that execution, of whatever right, title, and claim Shields had in the property. Now it must be borne in mind, that not only before the sale, but even before the levy, Shields had mortgaged the lot to Franks; and, consequently, his right was only an equity of redemption. Was this such a right or interest, as that a fieri facias could be levied upon it? ”

“ With the appellant's premises on this point, as legal propositions, we see no reason to find fault. It cannot be denied as a legal principle, that a debtor's equitable estate in personal property cannot, at law, be seized and sold under a fieri facias.' Now, this was the case of personal estate; but it proves, clearly, that but for the act of 1810, before referred to, the same principle would have applied to real estate; for the difficulty does not grow out of the kind of property, but out of the kind of interest in the property, to wit, that it is equitable, and not legal. ”

“ Neither dower can be recovered, nor trespass maintained, where there is a mere equity; nor, where that is the case, can a fieri facias be levied. The same principle, then, precisely, which, in Maryland precludes the recovery of dower by the widow of a mortgagor, or the maintenance of an action of trespass by a mortgagor against a mortgagee, exempts, also, the equity of redemption of a mortgagor from being liable to execution. ”