Creech v. Wilder
| Decision Date | 13 October 1937 |
| Docket Number | 254. |
| Citation | 193 S.E. 281,212 N.C. 162 |
| Parties | CREECH et al. v. WILDER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Johnston County; Marshall T. Spears Judge.
Action by Clifton B. Creech and others against W. J. Wilder. From a judgment for defendant, plaintiffs appeal.
Reversed. Action to have defendant adjudged to hold title to land described in the complaint as trustee for the plaintiffs.
It is admitted of record that on February 7, 1921, J. Ivan Creech was the owner of the land in question; and that on that date the said J. Ivan Creech and his wife, Lillie Creech, executed to the Bank of Kenly a mortgage deed, duly registered in the office of the register of deeds of Johnston county, conveying the said land as security for an indebtedness of $2,500 evidenced by note due January 1, 1922, and in which the usual power of sale was given.
Plaintiffs allege and offer evidence tending to show that J. Ivan Creech died intestate on the 4th day of January, 1927, leaving surviving Lillie Creech, his widow, and the plaintiffs, his children, as his only heirs at law; that on January 29, 1927 Lillie Creech, his widow, was duly appointed and qualified as administratrix of the estate of said J. Ivan Creech, record of which was duly made, and as such, on March 19, 1930, she filed verified report in the office of the clerk of superior court of Johnston county, marked "Final Account." In this report she sets forth in effect that all personalty of the estate has been exhausted, that all debts except on real estate have been paid and that "she has assumed the payment of the land debt," upon which she asks acceptance of the account and discharge of herself and her sureties. The clerk of superior court on the same day made an order accepting the account and releasing the administratrix and her sureties. Both the account and the order were duly recorded in the Book of Final Accounts in office of said clerk, and are the last entries in the clerk's office concerning said estate.
Plaintiffs offered for the purpose of attack only record of registration on December 7, 1933, of what purports to be a deed, dated December 1, 1933, from and in the names of R. H. Stevens, liquidating agent for and on behalf of the Bank of Kenly, original mortgagee, and Oscar Creech, executor of the last will and testament of R. R. Creech, deceased, transferee of the Bank of Kenly, to defendant W. J. Wilder, in which the following recital appears: "That whereas, by a certain mortgage deed made by J. I. Creech and wife, Lillie Creech, to the said Bank of Kenly, on the 7th day of February, 1933, to secure payment of a debt of $2500.00, and interest, due to said Bank of Kenly, as will fully appear by reference being had to said deed (See Register's office of Johnston County, Book 92, page 283), the conditions of which not being complied with, the said Oscar Creech, Executor of R. R. Creech, deceased, transferee of the Bank of Kenly original mortgagee, did, according to said conditions, expose to public sale on the 14th day of November, 1933, the property therein mentioned, and thereby conveyed, that is to say, the tract of land described in said mortgage deed, and the said Mrs. Lillie Creech, being the last and highest bidder at the price of $390.00, and the said Lillie Creech, having transferred and assigned her bid for value to W. J. Wilder, the said W. J. Wilder became the lawful purchaser, and the said bid not having been raised within 10 days, the said W. J. Wilder became the lawful purchaser." The land therein described is the land in question, containing 39 5/8 acres, more or less.
Plaintiffs allege that at the time of the sale the land was reasonably worth the sum of $2,000, that the reasonable rental value for 1934 and subsequent years was $200 per year, and "that the said Lillie Creech, the mother of the plaintiffs and the administratrix of the estate of their father, J. Ivan Creech, after she had assumed the payment of said debt, if there was any due thereon, in her final account as administratrix for the purpose of wrongfully and fraudulently depriving the plaintiffs of their interest therein as heirs at law of their father, J. Ivan Creech, procured said lands to be sold under the old mortgage above described executed to the Bank of Kenly and became the purchaser therefor at the sum of $390.00, which is only a small percentage of its real value, and that on account of said fraud and her relation to the said property and her duty to protect the interest of the plaintiffs, heirs at law of the estate for which she was administratrix, any title that she acquired by virtue of said sale and her said purchase at said sale she held as Trustee for herself as the widow and the plaintiffs as heirs at law in said estate."
Plaintiffs further allege that, by the records of administration and of final accounts, the defendant was fixed with notice of the relation of Lillie Creech to the estate and that she had assumed the payment of the mortgage debt, and that, by taking assignment of her bid, he acquired no better right than she had, that is, in event bid should not be raised, to take title to the land in trust for the widow and heirs of J. Ivan Creech, and pray decree.
Plaintiffs further offered testimony tending to show that of the land in question 17 or 18 acres are cleared land. Plaintiffs then proposed to offer evidence to show the value of the land and its rental value, to which objections were sustained, and plaintiffs excepted.
From judgment as of nonsuit at the close of plaintiffs' evidence, plaintiffs appealed to the Supreme Court, and assigned error.
Parker & Lee, of Smithfield, for appellants.
A. M Noble and Wellons & Wellons, all of Smithfield, for appe...
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