
    Elliot vs. Patton and another.
    
    The right of redemption under the acts of 1820, ch. II, and 1828, ch. 24, whether of a legal or equitable estate, descends to the heir.
    'When the lands of the ancestor have been sold and purchased, and the equity of redemption to said lands has descended to the heir, a judgment creditor of the ancestor is not entitled to redeem from the purchaser according to the provisions of the act of 1820,_ until the plea of fully administered is found for the personal representative, and a judgment had against the heir upon a scire facias.
    
    The inheritance of the heir can only be divested for the satisfaction of the debts of the ancestor, by pursuing the provisions of the "act of 1784, ch. II. .-
    The creditor offering to redeem under the act of 1820, ch. 11, sec. 3, must offer and agree ‘-‘to credit the person whose estate was sold with the further sum of ten per cent, ormore, on the amount hid at the sale,” before he will be entitled to redeem.
    The offer and agreement, on the part of the creditor wishing to redeem, “to credit the person whose estate was sold with the further sum of ten per cent, or more, on the amount bid at the sale,” is made by the act of 1820, ch. 11, sec. 3, a condition precedent to any right he may have to demand a conveyance of the interest purchased.
    The purchaser under the act of 1820, ch. 11, sec. 3, has his election whether to convey the interest purchased, or “to pay or secure Urbe paid within six months thereafter to the creditor, the sum proposed to be advanced by him,” on the bid at the sale.
    The offer and agreement of the creditor wishing to redeem, “to credit the person whose estate was sold with the further sum of ten per cent, or more, on the amount bid at the sale,” must be averred in the pleadings, and proved on the trial, in order to entitle the creditor to a recovery for a non-conveyance by the purchaser.
    This cause came up to this court on appeal in the nature of a writ of error, from the decision of the Circuit Court of Madison County. The plaintiffs-in their declaration allege, that one John F. Brown being indebted to the defendant, Elliot, on the 11th day of February, 1S29, made and executed his certain deed for a certain lot of ground in the town of Jackson, being lot No. 104, and one half of lot No. 72, that said deed was made in trust to Wyatt Epps, as trustee, to secure the payment of Elliot’s debt which was specified in the deed of trust. By said deed of trust, said Epps was authorized, in case of the non payment of the debt at the time in the deed specified and limited, to sell and dispose of said ground at auction, to the highest bidder for cash, and apply the proceeds to the payment of said Elliot’s debt, subject to be redeemed in the manner as required by the statutes in such cases made and provided. That when the day arrived for the payment of said Elliot’s debt, as limited in the deed of trust, the same was due and unpaid; and that Epps, the trustee, in pursuance of the power given him by the deed, having complied with the requisitions thereof, proceeded to sell the said premises in the deed mentioned, at public auction to the highest bidder for cash, at the time and place required by the deed. That the defendant became the purchaser, being the highest, best and last bidder, for the sum of four hundred and seventy-nine dollars; by means of which purchase, the said defendant became and was vested with a claim to said lots, subject to redemption within two years thereafter, by the said John E. Brown, or by a bona fide creditor of the said John F. Brown. And that on the 25th day of April, 1831, the said John F. Brown being dead, and being indebted to the plaintiffs, by virtue of a judgment by them recovered against him in his lifetime, in the County Court of Madison County, for the sum of $246 50, and also the sum of $91 81, a judgment recovered against said Brown, as stay of Benj. P. Seawell, on the 16th of February, 1828, before a justice of peace; and the said plaintiffs being thereby bona fide creditors of the said John F. Brown, and the time for redemption Raving not then expired, and the defendant holding, claiming, and having possession of said lot of ground, by virtue of said sale unredeemed, tendered and offered to the defendant, *n satisfaction and discharge of the amount bid by the defendant at the sale of said lot, the amount bid and paid by said defendant, for said lots upon the purchase thereof, with 10 per cent, interest thereon; and then offered to redeem said lot and premises, and requested the defendant to receive said money, and convey and assure the said lot and premises to the plaintiffs, at their proper charge and expense, or pay, or secure to be paid to them within six months thereafter, the amount of their debts and claims; but that said Elliot refused soto do.
    To this declaration the defendant pleaded, that by the sale of said lots as mentioned in the declaration, no legal title vested in the defendant; that no conveyance or assignment of the estate in said lots was made by Epps to the defendant at the time said plaintiffs offered to redeem; that John F. Brown had not the legal estate to said lots of ground at the making of said conveyance, or at any time thereafter, but that the same was then, and has been ever since in the commissioners of the town of Jackson, and that the claim or right conveyed by said John F. Brown, and sold under said deed of trust, and purchased by defendant, if any claim, is only in equity; that the defendant obtained possession of the lots by a contract with the widow of John F. Brown, to hold the same until the rents should pay his debt and interest, and then relinquish his claim to the heirs of Brown. The second plea is, that plaintiffs were not judgment creditors of said Brown as they have alleged in the declaration. The third plea is, not guilty. Upon the two latter pleas, issues are formed, and to the first there is a demurrer.
    Upon the trial of this cause the parties submitted the same to the decision of the court upon an agreed statement of the facts, which was as follows: “The parties agree that John F. Brown, at the time of making the deed of trust to Epps, had not the legal title to the premises in the declaration mentioned, but that the legal title thereto was then, and now is in the commissioners of the town of Jackson. That said Brown . n • i »»'r held the written agreement ol said commissioners tor a conveyance, and that he had paid the purchase money.— They further agree that a sale under said deed of trust had been made, and the premises purchased by the defendant as set forth in the declaration; that a tender of the money and an offer to redeem was made at the time, and in the manner stated in the declaration; that the defendant refused to permit the plaintiff to redeem as stated; that said plaintiffs were at the time of said sale, and when they offered to redeem, judgment creditors of-said Brown, as stated in the declaration, by virtue of judgments rendered against said Brown in his lifetime; that the same had not been revived either against the representative^of said Brown or his heirs; that said Brown died before the sale of said lots under said deed of trust; and that the defendant never received a title or assignment under the trust sale, but before the tender of the plaintiffs and offer to redeem, made the contract with the widow mentioned in his first plea, to assign over his right to the heirs, as soon as their rents and profits would amount to his debt and interest. ” Upon this statement of. the facts, the parties agreed that the court should decide the law arising thereon, and give judgment as on the verdict of a jury, reserving the right of appeal to the Supreme Court; and thereupon the court decided that the law was in favor of the plaintiffs, and gave judgment for the plaintiffs for the sum of $160, the damages sustained by the plaintiffs in not being allowed to redeem. From which opinion of the court, the defendant prayed an appeal in the nature of a writ of error to this court.
    
      Jno. Read, A. B. Bradford and P. M. Miller, for plaintiff in error.
    
      Adam Huntsman and Wm. ¡Stoddart, for defendants in error.
    
      
      
         Acc. Mar. and Yer. 353: 1 Yerger’s Rep. 44, 285.
    
   Green, J.

delivered the opinion of the court. r

The equity of redemption to the lot in question descended, upon the death of John F. Brown, to his heirs. So soon as the lot was sold under the deed of trust, and Elliot became the purchaser, these heirs had a right to redeem it. Having the inheritance vested in them, our law knows of hut one mode, by which it can be divested for the satisfaction of the debts of the ancestor, and that is by pursuing strictly the provisions of the act of 1784, ch. 11. The inheritance of the heir can only be reached through the personal representative of the ancestor.— He has a right, that the personal assets shall be exhausted before he shall be called upon to surrender the lands descended to him. Until, therefore, the plea of fully administered be found in favor of the personal representative, and a scire facias run against the heir, the lands descended to him are not liable. Boyd vs. Armstrong, 1 Yer. Rep. 44. Gilman vs. Tisdale, Ibid 285. Peck vs. Wheaton, Mar. and Yer. R. 353.

If the lands in the hands of the heir, cannot by any process of law, or proceeding in equity, be rendered liable for the debts of the ancestor until made so by pursuing the act of 1784, ch. 11, can it be supposed, that all these guards, which are placed around the inheritance of the heir, are intended to be broken through by the acts of 1820, ch. 11, sec. 3, and 1823, ch. 24, sec. 2. The act of 1820, ch. 11, sec. 3, says a bona fide creditor of the individual whose interest in land may be sold, may redeem; but it does not mean that he may do so, when the heir is interested, unless the personal assets shall have been exhausted. Inasmuch as the heir being the owner of the land, had the same right to redeem, that would have existed in the ancestor had he been living, so the creditor who may interpose and prevent the exercise of that right, must be a creditor of the heir, rendered so by the proceeding the law requires, in order to charge the lands descended to him. If this were not so, the lands of the heir might he taken in satisfaction of debts of the ancestor, for which they could never have been rendered liable, hut for the accidental circumstance, that they had been conveyed by the ancestor in trust to secure another debt. Inasmuch, therefore, as there had been no proceeding against the administrator, showing that there are no personal assets to pay these debts, and no scire facias against the heirs of Brown, by which to charge tire lands, we are of opinion that the real estate in the hands of the heirs is not liable to he taken in satisfaction of them, and that the defendants in error had no right to redeem the lot in question.

In addition to the point already noticed, there is another ground upon which a recovery in this action is successfully opposed. The declaration does not aver, nor do the facts agreed show, that the defendants in error offered and agreed ccto credit the person whose estate was sold with the further sum of ten per cent, or more, on the amount hid at the sale.” Such an offer and agreement, on the part of the creditor wishing to redeem, is made by the act a condition precedent to any right he may have to demand of the purchaser a conveyance of the interest pm-chased. Had the defendants in error made such offer, Elliot would then have had his election whether to convey the interest purchased, or “to pay or secure to be paid within six months thereafter,” to the defendants in error, “the sum so proposed to be advanced” by them on tire hid at the sale. He could only he liable for refusing to do what the law required him to do, and gave the defendants in error a right to demand. Until, therefore, they made this offer, they could not demand a conveyance, and he could not be liable to them, because the statute gave him a right to an election, which they did not put it in his power to make. This is an important fact, which in order to a recovery must be averred in the declaration, and proved. 445-6-7. 1 Com. Dig.

Judgment reversed. 
      
       In the caso of Hawkins vs. Jamisdn, Martin and Yerger’s Rep. it was held no action at law would lie, for a refusal to permit a creditor to redeem.
     