Johnson v. Barefoot

CoNNOR, J.

Section 76, Consolidated Statutes of North Carolina, 1919, prior to its amendment by chapter 355, Public Laws of North Carolina, 1935, was as follows:

“All conveyances of real property of any decedent made by any de-visee or heir at law, within two years from the grant of letters, shall be void as to the creditors, executors, administrators, and collectors of such decedent; but such conveyance to bona fide purchasers for value and without notice, if made after two years from the grant of letters, shall be valid even as against creditors.”

In the instant case the conveyance of the lands allotted to Elmon Wood in the partition of the lands owned by John W. Wood, at his death, to the defendant Wade F. Johnson, by the deed of P. B. Johnson, whose title to said lands was derived from the mortgage deed executed by Elmon Wood, was within two years from the grant of letters to the administrators of John W. Wood, deceased. For that reason the conveyance to the defendant Wade F. Johnson is void under the statute in force at the trial of this proceeding, as against the petitioners herein, although the defendant Wade F. Johnson was a bona fide purchaser of the lands conveyed to him, for value and without notice that the personal assets of the estate of John W. Wood, deceased, were not sufficient in value for the payment of his debts.

The conveyance of the lands allotted in said partition to Glenn Wood to the defendant Premier Fertilizer Company was made after two years from the grant of such letters, and is valid as to the petitioners, if the defendant Premier Fertilizer Company was not only a bona fide purchaser of the lauds conveyed to him for value, but also such purchaser without notice. See Murchison v. Whitted, 87 N. C., 465. The defendant Premier Fertilizer Company had no actual notice at the time the lands were conveyed to him that the personal assets belonging to the estate of John W. Wood, deceased, were not sufficient in value for the payment of his debts. It does not appear from the facts agreed that said defendant had constructive notice of the amount of the indebtedness of John W. Wood at his death, or of the value of his personal property. The fact that it appeared from the records in Johnston County that the estate had not been settled was not notice to the defendant of such fact.

There is no error in the judgment that the lands now owned by the defendant Wade F. Johnson are subject, and that the lands now owned by the defendant Premier Fertilizer Company are not subject to* sale in this ¡proceeding- for the payment of the debts of John W. Wood, deceased.

There is error, however, in the judgment that the lands now owned by the defendant Wade F. Johnson are subject to sale for the payment of the indebtedness of Elmon Wood to the petitioners, as evidenced by the judgment recovered by the petitioners against the said Elmon Wood. This judgment was docketed subsequent to the registration of the mortgage deed from Elmon Wood to W. Jesse Stanly, under which the defendant Wade F. Johnson claims title to the lands conveyed to him by P. B. Johnson. The petitioners have no lien in the lands conveyed to the defendant Wade F. Johnson by P. B. Johnson, by reason of the parol agreement between the petitioners and Elmon Wood with respect to the payment of the note which was subsequently reduced to judgment.

As modified in accordance with this opinion, the judgment is

Affirmed.

Devin, J., took no part in the consideration or decision of this case.