Cunningham v. Bell

• Decision Date: 30 June 1880
• Court: North Carolina Supreme Court
• Parties: H. V. CUNNINGHAM v. B. W. BELL.

83 N.C. 328

H. V. CUNNINGHAM

v.B. W. BELL.

Supreme Court of North Carolina.

June Term, 1880.

MOTION to vacate an injunction heard at Fall Term, 1879, of MACON Superior Court, before Graves, J.

The material facts are that in August, 1875, D. C. Cunningham, the husband of plaintiff, as agent for her, purchased of defendant a house and lot in the town of Franklin, Macon county, at the price of twelve hundred dollars, payable in six equal annual instalments, it being left to the husband to manage the trade and have the title secured to her, as her sole and separate estate. On making the purchase the husband gave his own notes for the money and took a deed conveying title to himself, and at the same time re-conveyed the house and lot to defendant to secure the notes for the purchase money as they should fall due.

It is alleged in the complaint that the plaintiff sold a tract of land belonging to her in order to raise the money to pay for the town property, and that the notes secured by the mortgage had been very nearly all paid by her, and His Honor finds as a fact in the case of appeal made out by him, that the payments, so far as made were made as agreed on either by the plaintiff in person or by means furnished by her, or derived from her separate estate.

The husband, D. C. Cunningham, in 1876, executed a deed purporting to convey the said house and lot to two of the sons of the marriage in trust for the plaintiff, and she now occupies the same and has so done ever since the purchase but recently the defendant has sued out an execution on a judgment he had against D. C. Cunningham in 1870, for a debt other than the one secured by the mortgage, and is now threatening to sell thereunder the equity of redemption in said land as belonging to D. C. Cunningham.

This action is brought by the plaintiff to redeem the land on the payment of whatever sum may be due on the mortgage, and praying to have the title thereof conveyed to her, and pending the suit to restrain the defendant from selling any supposed interest of D. C. Cunningham therein.

Upon the plaintiff's application, the judge granted an injunction as prayed for, with an order to show cause, and at the day appointed, on motion of defendant on answer filed, His Honor vacated the injunction, and from that order the appeal is taken.

Messrs. Reade, Busbee & Busbee and T. F. Davidson, for plaintiff .

Messrs. Merrimon, Fuller & Fuller, for defendant .

DILLARD J.

It is unnecessary to recite or refer to any of the particular averments of the answer of defendant as bearing upon the question of the legal correctness of the order vacating the injunction, inasmuch as our opinion proceeds upon the facts above enumerated, taken from the judge's statement of the case and from the allegations of the complaint not controverted, or at least not denied from any knowledge to the contrary on the part of the defendant.

The plaintiff, if the land was purchased for her and to be paid for by her, and if the same had been paid for in whole or part by her means, had an equity on extinguishing the purchase money to have a trust declared of the legal title to her use and to have a conveyance of the same to her in fee. Adams' Eq., 33, 34; Dula v. Young, 70 N. C., 450; Lyon v. Akin, 78 N. C., 258. Here, the judge finds as a fact that the payments on the purchase money secured by the mortgage, so far as made, were made by the plaintiff as agreed on by means furnished by her or derived from her separate property. And thereby an equity arose to the plaintiff pro tanto her payments, and will arise in toto on full payment, to have the trust declared and enforced in...