Evans v. Brendle

• Court: North Carolina Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Evans v. Brendle, 173 N.C. 149, 91 S.E. 723 (N.C. 1917)
• Decision Date: 14 March 1917
• Docket Number: 577.
• Parties: EVANS v. BRENDLE.

91 S.E. 723

173 N.C. 149

EVANS v. BRENDLE.

No. 577.

Supreme Court of North Carolina

March 14, 1917

Clark C.J., and Brown, J., dissenting.

Appeal from Superior Court, Swain County; E. B. Cline, Judge.

Action by Margaret Evans against Mark Brendle. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover land, both parties claiming title under Lee Fuller. On January 28, 1896, Lee Fuller executed a deed to H. T. Jenkins purporting to convey said land to him in fee. In the spring of 1898 he commenced an action, to which his wife, S. J. Fuller, was not a party, alleging that the deed of January 28th was intended as a security for a debt and that certain clauses had been omitted by mistake, and at July term, 1902, of Swain superior court, the following judgment was rendered in said action:

Lee Fuller v. Henry T. Jenkins.

This cause coming on to be heard on motion of the plaintiff for judgment in accordance with the judgment and opinion of the Supreme Court in this action: It is ordered, adjudged and decreed by the court that it appearing, and having been made to appear, that the plaintiff paid into the office of the clerk of the superior court of Swain county the sum of $9.95 the amount which was required to be paid by the opinion of the Supreme Court; that the defendant, H. T. Jenkins, shall execute and deliver to S. H. Fuller, her heirs, a deed conveying the title to the land, which is described as follows: "Beginning on a stone in the ford of the branch, it being the Jones corner and runs south 49 1/2 west 22 poles to a stake with pointers; thence south 32 east 12 poles to a small black oak; thence south 32 east with Charles Jenkins' line 26 poles to a stake on the north side of a large gully; thence north 83 east * * * poles to a stake in the branch; thence north 15 west 23 poles to a stake in the branch; thence down the branch as it meanders to the beginning, containing 11 1/2 acres, situated in Swain county Charleston township." It is further ordered, adjudged and decreed by the court that the title to the said tract of land be and the same is hereby divested out of the defendant, H. T. Jenkins, and that the title to the same is hereby vested by this decree in said S. H. Fuller, and her heirs. It is further ordered and adjudged by the court that the plaintiff have and recover of the defendant, H. T. Jenkins, and his surety of his defense bond, Charles Jenkins, the cost incurred in this action to be taxed by the clerk.

[Signed] M. H. Justice.

On January 15, 1903, Lee Fuller and wife, S. J. Fuller, executed a deed to the plaintiff purporting to convey said land in fee. The judge finds as a fact that Lee Fuller directed his counsel who drew the decree at July term, 1902, to convey this land to Fuller's wife, S. J. Fuller, but by mistake he named S. H. Fuller in the decree. The judge also finds that the person intended was Josephine Fuller, the wife of Lee Fuller, who had by name of Josephine Fuller joined in the conveyance to Henry T. Jenkins on January 28, 1896, and that the intention was to convey the land to her by this decree, and that S. J. Fuller and Josephine Fuller are one and the same person, and that she is the person who by mistake was named as S. H. Fuller in said decree, and that she has never been known as S. H. Fuller, but by mistake in drawing the decree she was designated S. H. Fuller, instead of S. J. Fuller. In the meantime judgment had been obtained January 9, 1900, in the federal court against Lee Fuller on a distiller's bond, which judgment was docketed in Swain, February 21, 1900. This tract of land was sold under execution on said judgment on May 7, 1900, at which sale the United States became the last and highest bidder, and the deed was made accordingly, May 23, 1900, and duly registered. On March 11, 1900, under proceedings in accordance with law, the Commissioner of Internal Revenue conveyed said tract to the defendant M. F. Brendle.

On these facts judgment was rendered in favor of the plaintiff, and the defendant excepted and appealed.

Bryson & Black, of Bryson City, for appellant.

Frye & Frye, of Bryson City, for appellee.

ALLEN J.

It was contended before us that the decree in the action of Lee Fuller v. Jenkins, did not carry the title to S. J. Fuller because of the mistake in the second initial, and that it would first be necessary to bring an action to correct the decree. This is unnecessary under our system of procedure combining legal and equitable remedies. As it is found as a fact that S. J. Fuller was intended when by mistake S. H. Fuller was named, and that S. J. Fuller, the party named, is Josephine Fuller, the wife of Lee Fuller, who joined in the conveyance to Jenkins in 1896, and who, with her husband, made the subsequent deed to the plaintiff in January, 1903, this is sufficient if the grantee (by whatever name) obtained the title under such decree. The name used is merely a designation to identify the party, and when that identity is established a variation in name and especially a difference in the middle letter, as S. H. Fuller, instead of S. J. Fuller, is immaterial.

In Words and Phrases (Second Series), under the title "Name," it is said: "The common law recognizes but one Christian name, and a middle initial may be dropped or changed at pleasure." It is further said, "In law the name of a person consists of one given name and one surname."

The plaintiff in her amended complaint sets out the decree of 1902 as a part of her title, and alleges that it had the effect of passing to the wife of Lee Fuller a perfect equitable title, if not a legal title, and to these allegations the defendant makes no answer, nor does he allege that the direction in the decree to make the title to the wife was fraudulent. There is also no evidence of an adverse possession by the defendant and those under whom he claims prior to 1909, about five years before suit brought, so that there is no evidence of seven years' adverse possession under color. There are therefore two questions, which are determinative of the appeal: (1) Did the wife of Lee Fuller acquire a legal or equitable title to the land in controversy under the decree of 1902? (2) Did the sale by the marshal of the United States, under which the defendant claims, pass a legal or equitable title to the purchaser?

The plaintiff may maintain her action against the defendant upon an equitable title (Watkins v. Manf. Co., 131 N.C. 537, 42 S.E. 983, 60 L. R. A. 617, and cases cited), and if the decree vested such a title in her grantor, and it was not divested by the sale by the marshal, which has the legal effect of a sale under execution, she is entitled to recover, and on the other hand, if the grantor of the plaintiff acquired no title, legal or equitable, under the decree, or if there was such title and it was divested by the sale, she cannot recover.

It is doubtful if the decree had the effect of vesting the legal title in the wife of Lee Fuller under the Statute (Revisal, §§ 566, 567), because of the failure to declare that it "shall be regarded as a deed of conveyance" ( Morris v. White, 96 N.C. 93, 2 S.E. 254), although the authority cited appears to give a narrow construction to the statute, and to attach more importance to the section declaring the effect of the decree than to the one prescribing its form; but however this may be, it appears from the record in the action of Fuller v. Jenkins that Jenkins, by force of the decree, held the legal title in trust to secure an amount due him, and then in trust for Lee Fuller, and that the amount due was paid, and this left the bare legal title in Jenkins and the beneficial interest and equitable estate in Lee Fuller, which he had the right to direct should be vested in his wife, although she was not a party. Testerman v. Poe, 19 N.C. 103; Campbell v. Baker, 51 N.C. 256; Ward v. Lowndes, 96 N.C. 381, 2 S.E. 591.

The last case cited was that of a purchase at a judicial sale by the husband, and a direction by him to make title to his wife, who was not a party, and the court says:

"The purchaser of the land, Lowndes, directed the deed for it to be made to his wife, and the administrator did so make it. This is made a ground of objection by the plaintiffs. It seems to us to be wholly without merit. The purchase money was paid as required by the order of the court, and the administrator was directed to make title to the purchaser. Why might he not make it to such person as the purchaser directed--to his wife? His power to convey to the purchaser was complete; the purchaser was entitled to have the deed made to him. Why not to have it made to such person as he might indicate? We can see no legal reason why he was not." The fact that the deed was not executed only affects the legal and not the equitable title.

We are therefore of opinion that the decree vested the equitable title in the wife of Lee Fuller, but if this was not so the equitable title was in Lee Fuller, and passed to the plaintiff under the deed of Lee Fuller and wife.

Did the purchaser at the sale by the marshal acquire a legal or equitable title? And this depends on whether Lee Fuller had at that time, two years before the decree in Fuller v Jenkins, an estate in the land subject to sale under execution or a mere right. The distinction between a right to have an equity established and enforced, which is not the subject of sale under execution, and an equitable estate which may be sold, if "simple and unmixed," that is, one which entitles the owner to call for the legal title, is well established. Thompson v. Thompson, 46 N.C. 430; Bond v. Hilton, 51 N.C. 181; Nelson v. Hughes, 55 N.C. 36; Taylor v. Dawson, 56 N.C. 91; Hinsdale v. Thornton, 75 N.C. 383; Henley v....