Gosney v. Mccullers

• Decision Date: 01 March 1932
• Docket Number: No. 110.,110.
• Citation: 162 S.E. 746,202 N.C. 326
• Parties: GOSNEY. v. McCULLERS et al.
• Court: North Carolina Supreme Court

162 S.E. 746

202 N.C. 326

GOSNEY.

v.McCULLERS et al.

No. 110.

Supreme Court of North Carolina.

March 1, 1932.

Appeal from Superior Court, Johnston County; Shaw, Emergency Judge.

Action by C. A. Gosney, trustee in bankruptcy for Charles W. Horne, against E. H. McCullers and others. Judgment for defendants, and plaintiff assigns error.

Affirmed.

Civil action to determine plaintiff's alleged right to sell an undivided one-third interest in a tract of land in the possession of defendants.

The facts are these:

1. On December 5, 1910, Ashley Horne and wife, for a valuable consideration, executed a deed, with full covenants of warranty, conveying a house and lot in the town of Clayton to E. H. McCullers and wife, Nellie Horne McCullers, for life, remainder to their daughter, Melba McCullers, in fee.

2. The grantees immediately took possession of said house and lot and have continuously occupied the same as owners thereof, though their deed was not registered until August 17, 1929.

3. In the meantime, on October 22, 1913, Ashley Horne died intestate leaving him surviving his widow and three children, Chas. W. Horne, Nellie Horne McCullers, and Swannanoa Horne Priddy, as his only heirs at law.

4. None of the heirs of Ashley Horne have made any claim to the house and lot in question, nor is any now claiming an Interest therein, but all have recognized the defendants as the true owners thereof.

5. On May 31, 1927, Chas. W. Horne was adjudged a bankrupt by the District Court of the United States, and the plaintiff duly appointed trustee of his estate.

6. The plaintiff, as such trustee, brings this action alleging that, under the Bankruptcy Act (11 USCA) he is deemed to be vested with all the rights, remedies, and powers of a creditor of Chas. W. Horne (Lynch v. Johnson, 171 N. C. 611, 89 S. E. 61; Hinton v. Williams. 170 N. C. 115, 86 S. E. 994), and that in the exercise of said rights he is entitled to sell an undivided one-third interest in the locus in quo.

From a judgment for the defendants, rendered on the above facts agreed, the plaintiff appeals, assigning error.

Parker & Lee, of Smithfield, for appellant.

STACY, C. J.

Is an unregistered deed, admittedly good as between the parties, valid as against the trustee in bankruptcy of an heir of the grantor? We think it is.

An heir takes only the undevised inheritance of which the ancestor was seized at the time of his death. C. S. § 1654. And by the express terms of the Connor Act, chapter 147, Laws of 1885, now C. S. § 3309, only creditors of the donor, bargainor, or lessor, and purchasers for value, are protected against an unregistered conveyance of land, contract to convey, or lease of land for more than three years....