Evans v. . Cullens , 122 N.C. 55 ( 1898 )

Action for the value of a crop levied on by the sheriff under an execution in favor of a creditor of the husband in 1895. The land and crop are claimed by the plaintiff wife under a deed dated and registered in 1876. The land was sold for partition, and the husband became the purchaser, and complied with the terms of sale, and title was ordered to be made to the purchaser. The commissioner made the deed to the plaintiff, wife of the purchaser, and they have ever since been in possession of the land, which was managed by the husband.

The defendant's contention is that the husband was the purchaser and paid the money, and that, although the deed was made to the (58) wife, the husband was the owner and had an equitable estate subject to sale under an execution against him. It does not appear whose money was paid, and the husband testified that he purchased the land for his wife, and claims no legal or equitable interest in either land or the crop. There is no allegation of the fraud or bad faith in any part of the transaction, nor that the husband was in debt in 1876.

If the defendant's theory be adopted, there is no one who can insist that the trust be executed, except the husband, and he declines to do so. If the husband paid his own money, and had title made to his wife, it was a gift to her and no one could complain except a pre-existing creditor of the husband. If the execution creditor, about 20 years after the wife's deed was recorded, gave credit to the husband, he did so with notice of the status of the property, and has no cause to complain. Therefore, the exceptions and distinctions made on the argument cannot avail the defendants.

We think this is a proper case in which to express our disapproval of the procedure in the partition proceedings. The petition was before the clerk or probate judge. He adjudged a sale to be necessary, and appointed himself commissioner to sell. He made sale and reported the sale to himself, confirmed the same, and ordered himself to make title to the purchaser, and did make it. This is not to be commended. What effect it might have upon some state of facts differing from the present, we do not now consider.

Affirmed.

Cited: Thompson v. Coats, 174 N.C. 198.

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