Frank v. Heiner

• Decision Date: 15 October 1895
• Citation: 117 N.C. 79,23 S.E. 42
• Parties: FRANK et al. v. HEINER et al.
• Court: North Carolina Supreme Court

23 S.E. 42

117 N.C. 79

FRANK et al.

v.HEINER et al.

Supreme Court of North Carolina.

Oct. 15, 1895.

Assignment for Benefit of Creditors — Acceptance of Trost.

Defendants made a general assignment for the benefit of creditors, and, calling on T., informed him of his selection as assignee, and asked him if he would accept the trust, to which T. replied "that he would like to do so, but could not answer till he saw B." The deed was then registered, but T. afterwards refused to act. Held, that the deed was valid, as against attachments levied subsequent to its registration, and that equity would appoint a trustee in T.'s place.

Appeal from superior court, Edgecombe county; McIver, Judge.

Action by Frank & Adler against Isaac Heiner and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Gilliam & Gilliam, for appellants.

John L. Bridgers, for appellees.

FURCHES, J. This appeal comes before us, from the court below, upon a case agreed, and the only question presented for our con sideration is whether the assignment therein mentioned was executed. If it was executed, the plaintiffs should not recover; if it was not, they should recover.

The general rule as to the sufficiency of execution seems to be this: That where the maker of the deed has gone so far with its execution that he can no longer control it, or recall what he has done, then the deed is considered executed, and the courts will enforce the same. Kirk v. Turner, 1 Dev. Eq. 14. This may be done by delivery to the grantee, or to some one for him, or it will be presumed by his having it probated and registered. Helms v. Austin, 116 N. C. 755, 21 S. E. 556. And, without something to rebut this presumption, its registration is a delivery. McLean v. Nelson, 1 Jones, 398; Adams v. Adams, 21 Wall. 185. The plaintiff contends that the presumption arising from the probate and registration is rebutted by the facts that Tillery said to Heiner, before the registration, when asked to accept the trust, "that he would like to do so, but could not answer until he saw Thomas H. Battle, " and that after it was registered, and he was applied to, he refused to accept the trust; and relies on Gaither v. Gibson, Phil. (N. C.) 532, for this contention. But we do not think so. In the case cited, the defendant, before registration, refused to accept the deed, upon the allegation of a defect in the title. And the court held that this refusal of Gibson's rebutted the presumption arising from probate and registration. But in this case there was no refusal, by the trustee named, to accept the trust, before the deed was probated and registered. But the intimation was that he would do so. What was said to Tillery, and by him to Heiner, before the registration, is no stronger for the plaintiff, and against the execution of the assignment, than if he had known nothing about its execution, as in McLean's Case, supra, and Adams' Case, supra. And in Adams' Case, as soon as the trustee was informed of the deed, and that he was named as the trustee, he declined and refused to have anything...