Davis v. Inscoe

• Decision Date: 31 January 1881
• Citation: 84 N.C. 396
• Court: North Carolina Supreme Court
• Parties: JOHN C. DAVIS and others v. WILLIAM INSCOE.

84 N.C. 396

JOHN C. DAVIS and others

v.WILLIAM INSCOE.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION to recover land tried at Spring Term, 1880, of FRANKLIN Superior Court, before Seymour, J.

A jury trial being waived, the judge found the facts as follows: Dr. Thomas Davis of Franklin county died in 1862, leaving a last will and testament by which he directed his land to be sold by his executors, N. B. Massenburg and John C. Davis, who were appointed by him executors of his will. Massenburg alone qualified, and Davis renounced on the 22d day of January, 1863. Massenburg, as executor, sold the land in controversy and A. H. A. Stallings became the purchaser at five dollars and fifty cents per acre, and on the same day executed a bond for the purchase money with two sureties who were at the time solvent, and a deed for the land consisting of two hundred and sixty-six acres was executed by said executor to him. On the same day, Stallings sold and conveyed by a deed in fee simple to A. W. Pearce, Sen., one hundred and fifty-six acres of the land, upon the same terms and for the same price as those between the executor and Stallings, and Pearce had notice that no money had been paid for the land.

At September term, 1867, of the court of pleas and quarter sessions for Franklin county, Simon Kittrell obtained a judgment for one hundred and fifty dollars with interest against said Pearce and others, and at the same term Brown & Thomas obtained judgment against Pearce and others for two hundred and fifty dollars and interest.

Executions were issued on these judgments from September term returnable to December term of said court, and alias executions from December term, 1867, to March term, 1868, of said court, and duly levied on said land. On the 11th of March, 1868, the sheriff by virtue of said executions sold and conveyed the one hundred and fifty-six acre tract (conveyed by Stallings to Pearce) to Thomas & Thomas, who in the year 1873 conveyed the same to the defendant.

At June term, 1868, a judgment was obtained by Samuel Perry against said Stallings for one hundred and twenty-five dollars and interest, and execution issued upon the same from said term returnable to September term, 1868. The case and execution were transferred to the superior court on the 19th of June, 1868, and an alias execution issued from September term, 1868, to spring term, 1869, and levied by the sheriff on the one hundred and ten acre tract of the land conveyed to him by Massenburg as executor, and a vend. ex. issued from spring term, in pursuance of which the sheriff sold and conveyed said land to one Minitree, who in 1872 conveyed the same to the defendant.

The deed from Massenburg to Stallings was never registered and the purchase money was never paid.

Massenburg died in February, 1867; and on the 11th of March, 1869, John C. Davis qualified as executor of Thomas Davis, deceased.

About a year before the 5th of June, 1869, the date of the sheriff's sale of the Stallings' part of the locus in quo and before any judgment had been obtained against him, an oral agreement was made between Stallings and John C. Davis, by which, in consideration of the fact that no money had been paid for the land and that the sureties on the bond for the purchase money were insolvent, the said Stallings agreed to surrender his unregistered deed for the land, and shortly after the 11th of March and after the levy of the execution aforesaid and before the 5th of June, 1869 (the date of the sale), the said Stallings surrendered the deed to Davis.

Stallings went into possession of the one hundred and ten acre tract in 1863, and remained therein until he surrendered the deed, and there was no actual possession of the land from the time of such surrender until after the execution sale, when Minitree took possession; and from the time of the sale until the bringing of this action, the land has been continuously in possession, first of Minitree, and then of the defendant.

A. W. Pearce, the Thomases, and the defendant have had continuous possession of the one hundred and fifty-six acre tract since the 23d of January, 1863.

The defendant had no notice in fact of the claim of plaintiff, or of the fact that the purchase money had not been paid or of the agreement to surrender or of the surrender of the deep, until several years after he had bought and paid for the land.

The court found as conclusions of law, that plaintiff is entitled to recover the one hundred and ten acre tract, on the ground that the parol agreement for a conveyance of said tract was made before the teste of the execution, and that no person but the parties thereto can avail himself of the statute of frauds; and further, that plaintiff is not entitled to recover the one hundred and fifty-six acre tract. There was judgment accordingly, from which both parties appealed.

Messrs. J. B. Batchelor and Reade, Busbee & Busbee, for plaintiffs .

Mr. Charles M. Cooke, for defendant .

ASHE, J.

The land sold by the executor, Massenburg, was divided into two tracts by the purchaser, Stallings, by his selling one hundred and fifty-six acres thereof to A. W. Pearce on the day of sale, and reserving the residue of one hundred and ten acres. And though both tracts ultimately came into the possession of the defendant, they were acquired by him through different chains of title. The title to each was derived through a sheriff's deed, but by sales under different executions and at different times, and the principles of law which govern the one case have no application to the other.

The plaintiffs claim title to the whole of the land sold by the executor. They insist that upon the death of the father, the legal title descended to them and was never divested by the sale to Stallings, because the deed made by Massenburg, the executor, to him was never registered, and a deed though executed and delivered but not registered does not pass the legal estate. This according to recent decisions of this court we must hold to be law, whatever may be our individual opinions in regard to its correctness. The unregistered deed however conveyed an equitable estate to Stallings. But before any lien was acquired upon the one hundred and ten acre tract by virtue of the execution issued upon the judgment obtained by Perry against Stallings, and in fact before the rendition of the judgment, without any allegation of fraud, there was a parol agreement between Stallings and John C. Davis, the surviving executor, to surrender the unregistered deed in consideration that the notes given by him for the purchase money should be delivered up. If this was a valid contract, it had the effect to extinguish the equity of Stallings in the tract of one hundred and ten acres. When a deed has been delivered, but before probate and registration, the vendor and vendee may rescind the contract by returning the consideration and redelivering the deed. Love v. Belk, 1 Ired. Eq., 163. But the validity of this contract...