Egerton v. . Jones , 107 N.C. 284 ( 1890 )

1. We can see no error in the ruling of the court upon the trial of the issue submitted to the jury. It was very properly held that there was not sufficient evidence to show that the deed was not written as the parties intended. Indeed, the evidence does not at all suggest that a clause of defeasance was ever contemplated by the parties, and was omitted by reason of "ignorance, mistake, fraud or undue influence," and this it was necessary to prove before the deed could be corrected. See this case, reported in 102 N.C. 281, and the authorities cited.

The fact that the deed was drawn by one who was "not conversant with legal forms" does not meet the indispensable requirements of a Court of Equity in granting such relief, and this seems to be the only evidence, in addition to that which was introduced upon the former trial.

2. We are of the opinion, however, that his Honor should have allowed the motion to dismiss. This motion was not made at the former hearing, and was therefore not passed upon by the court.

The petitioner, as the administrator of Mark P. Jones, alleges that there is outstanding a judgment in favor of one Cheatham against his intestate; that the personal assets are insufficient to pay the same, and that a sale of the land is necessary. The land described in the complaint was set apart to the intestate as his homestead, and afterwards conveyed by him to John E. Boyd, who subsequently conveyed it to the widow and children of the said intestate. These facts appear upon the face of the petition, and it is not alleged that conveyance to Boyd and the conveyance by him to the defendants were made with intent to defraud the creditors of the intestate. Neither does it appear that the intestate had any equitable interest in the land at the time of his death; for, taking the answer to be true, that Boyd held the land in trust for him, and conveyed it, at his instance, to his wife and (290) children, the presumption of a resulting trust would be met — in the absence of any testimony rebutting it — by the counter presumption that the land was intended as a provision or advancement for his wife and children. Adams Eq., 35; Bispham Eq., 84.

It being manifest, then, that the intestate had no legal or equitable interest in the land at his death, it must follow that it could not be sold upon the petition of the administrator, and that the clerk had no jurisdiction. Mauney v. Holmes, 87 N.C. 428; and Murchison v. Williams,71 N.C. 135, holding that judgment and mortgage liens should be enforced by proceedings in which the administrator is a party, in order that the land may be exonerated in favor of the heirs or devisees by the personal estate, have no application where the intestate had no interest in the land at the time of his death. It is only when land, or some interest therein, has descended or been devised, or where it has been conveyed with intent to defraud creditors, that the administrator can have it sold in order to make assets. Code, sec. 1446. This has been distinctly decided in Heck v.Williams, 79 N.C. 437, which is a case directly in point. In that case the land was subject to a lien of a judgment, and was conveyed by the intestate without fraudulent interest. The court held that, though the sale did not divest existing liens, "it divested the intestate of all title, legal and equitable in the land sold, and that the administrator, as to that, was functus officio."

In Lee v. Eure, 93 N.C. 5, cited by the plaintiff, the conveyance of the land was alleged to be fraudulent, and the decision in that case is entirely consistent with the ruling in Heck v. Williams, supra. The repeal of sections 318 to 324, Code of Civil Procedure (Bat. Rev.) in no way affects the principle of the above case, as the said sections had reference only to cases where the debtor died without having disposed of his land.

Action dismissed.

Cited: Stainback v. Harris, 115 N.C. 104; Porter v. White, 128 N.C. 44;Harrington v. Hatton, 129 N.C. 147.

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