¶1 (after stating the facts). The pleadings, and the entire proceedings in this case, are such a departure from the regular and orderly practice of our courts, that we feel some hesitancy in going into a consideration of the case.
¶2 But as there is enough appearing from the confused and imperfect statement of facts, to enable us to reach the justice and equity of the case, we have concluded to pass these imperfections by, and decide this case upon its merits, so far as they can be ascertained.
¶3 According to the plaintiff’s own showing, and the finding of the referee, J. M. Hardin, the original plaintiff in the action, acquired no title to the land in controversy by his purchase at the sheriff’s sale. For it is alleged in the plaintiff’s replication, that he purchased it at a sale by the sheriff, under an execution issued against the defendant Ray, upon a judgment obtained against him by one Willis, as administrator of Faun, and the land at that time was subjected to the trust executed by the defendant to R. T. Hardin, to secure that debt, as found by the referee, and that there was still a balance due and unpaid, and that being so, the interest of the defendant*Ray was not the subject of execution and sale. Sprinkle v. Martin, 66 N. C., 55; Thompson v. Ford, 7 Ired., 418; Harrison v. Battle, 1 Dev. Eq., 537.
¶4 In this view of the case, there was error in the judgment of his Honor, in adjudging that the title to the land described in the complaint was in J. M. Hardin. But this error does not materially affect the result. For as the referee found that the deed of trust was executed to secure the Fann debt, among others, the-legal title was in R. T. Hardin until the balance of $24.71, found to be due on that debt, was paid.
¶5 The exceptions of the defendant to the report of the referee, we think, were properly overruled by the Court. The defend *461 ant having set up an equitable defence to that action, the plaintiff then had the right to reply any equitable matter in rebuttal, which might avail him. Therefore, he had the right, if the deed of trust only gave him an indemnity against his liability as surety on the Faun debt, “without waiting for actual loss, to call on the defendant to indemnify him' against impending injury.” Burroughs v. McNeill, 2 Dev. & Bat. Eq., 297. The referee, therefore, did right to deduct the $19.06, found to be due from the plaintiff R. T. Hardin to the defendant, from the $43.77, found to be still due on the Faun debt, for which the said Hardin was liable, and in this view, it would make no difference, whether the deed of trust was executed to secure the Faun debt, or to indemnify the plaintiff R. T. Hardin, as the defendant’s surety on that debt.
¶6 Our conclusion is, there was error in the judgment of the Superior Court, in that it was adjudged “that the title to the lands described in the complaint, is in J. M. Hardin, as a security for the payment by the defendant Jesse Ray, of the sum of twenty-four dollars and seventy one cents and interest, upon a judgment in favor of R. W. Willis, administrator vs. R. T. Hardin.” There was error in this part of the judgment, for there is no allegation in the pleadings by the plaintiffs, or either of them, that J. M. Hardin purchased the land at execution sale under such a judgment, but on the other hand, it is expressly alleged by them, that J. M. Hardin purchased at a sale under an execution against the defendant Ray, and as the Court found the fact, that the Faun debt, with interest and costs, bad been paid by the defendant since the report of the Referee had been filed, there was error in ordering that the deeds from Jesse Ray to R. T. Hardin, and from Willis Latham, sheriff, to J. M. Hardin, should be delivered up into the hands of the Clerk, to be can-celled. The judgment should have been, and is so modified, that R. T. Hardiu and J. M. Hardin, shall re-convey the land described in the complaint, to the defendant Jesse Ray, upon the payment by Jesse Ray of. all the costs of this action, including *462 au allowance of forty dollars to E. L. Vaughan for taking and settling the account, and the case is remanded to the Superior Court, that the judgment of the Superior Court, as herein modified, shall be carried into execution.
¶7 Modified and remanded.
¶8 Modified Remanded.