Gowing v. Rich

• Decision Date: 30 June 1841
• Citation: Gowing v. Rich, 1 Ired. 553, 23 N.C. 553 (N.C. 1841)
• Parties: DEN ON DEM. OF RICHARD GOWING v. JOSEPH RICH.
• Court: North Carolina Supreme Court

1 Ired. 553

23 N.C. 553

DEN ON DEM. OF RICHARD GOWING

v.JOSEPH RICH.

Supreme Court of North Carolina.

June Term, 1841.

Where land was purchased by A. but the deed of conveyance was made to her daughter B., who became personally liable for a part of the consideration money, a creditor of A. cannot sell this land under an execution at law to satisfy a judgment obtained by him against A. although the land was so conveyed expressly to protect it from the debts of A.

It cannot be so sold by virtue of the Statute of Frauds, Rev. St. c. 50, s. 1, because that only avoids conveyances made by the debtor himself.

Nor can it be sold under the Act of 1812, Rev. St. c. 45, s. 4, subjecting trust estates to execution, for that only applies to a case, in which the debtor, the cestui que trust, could immediately and unconditionally claim a conveyance of the legal estate from the trustee--not to one where the trustee needs the legal title to subserve the rights of himself or of third persons.

In the present case B., the grantee and trustee, before she could be compelled to part with the legal title, had a right to be compensated for the money she had paid or to be indemnified for the liability she had incurred in relation to the consideration of the purchase.

The remedy of the creditor was in equity, but on a different principle, and that is, the right in equity to follow the funds of the debtor.

The cases of Brown v. Graves, 4 Hawks 342; Gillis v. McKay, 4 Dev. 172; and Dobson v. Erwin, 1 Dev. & Bat. 569, cited and approved.

This was an action of ejectment, tried at Davie Superior Court of Law at Fall Term, 1840, before his Honor Judge PEARSON.

Both parties claimed under one Sheeks. The defendant admitted himself in possession. The plaintiff offered in evidence a judgment in favor of one Alexander against one Chloe Oaks and others, an execution thereon and a sheriff's deed to himself, conveying all the interest of the said Chloe Oaks. The plaintiff then offered evidence to prove, that the said Chloe Oaks in the year 1836, while the suit of Alexander, which was for a debt of about $2500 was pending, had sold a negro and had sold her home place for $700, and had contracted verbally to buy the land in question of Sheeks for $1250; that, on the day agreed upon to execute the writings, Sheeks went to the house of Mrs. Oaks, when he was informed by Mrs. Hoskins, who was the daughter of Mrs. Oaks and the widow of one Hoskins, who had died a few years before insolvent, leaving his widow destitute and dependant upon her mother for support, that she was to buy the land and would pay for it and take the deed in her own name. Sheeks expressed himself willing to make the deed to whoever paid him the money, and, accordingly, with the knowledge and consent of Mrs. Oaks, he made the deed to Mrs. Hoskins and received from her $700 in cash, of which $600 was in one hundred dollar bills, and took Mrs. Hoskin's note under seal for the balance, $550. Sheeks stated that he took Mrs. Hoskin's note without security, because he was told and believed that the land was bound to him for the purchase money. The plaintiff then offered evidence to prove, that Mrs. Oaks had bought and paid for the land; that the $700 paid was her money, which she had handed to Mrs. Hoskins, with the understanding that the deed was to be taken in the name of Mrs. Hoskins to keep off the creditors of Mrs. Oaks; and that Mrs. Hoskins was to execute the note for the balance of the purchase money, but Mrs. Oaks was to pay it. The defendant offered evidence to shew that the $700 was the money of Mrs. Hoskins--that a few months after the deed was executed and after Mrs. Oaks and Mrs. Hoskins had taken possession of their new home, the land in question, he had married Mrs. Hoskins, without notice of any implied trust in Mrs. Oaks, and had been compelled to pay the note of $550 executed by his wife. The plaintiff's counsel insisted, that, if in fact Mrs. Oaks had bought the land and paid $700 of the price and agreed to pay the balance, and made use of Mrs. Hoskin's name in the deed and in the note, as a cover to keep off creditors, then Mrs. Oaks had a trust estate, which was subject to execution sale under the act of 1812. The defendant's counsel insisted, 1st, that supposing the facts to be as contended for by the plaintiff's counsel and that Mrs. Oaks had an implied trust, the purchaser of of this trust under the act of 1812, did not acquire the legal title, but his remedy was in equity. 2dly, That the act of 1812 did not take within its operation an implied trust. 3dly, That the defendant, as husband, was a purchaser for valuable consideration, and, if he married without notice, he was not bound by the trust. 4thly, That, taking the facts to be as contended for by the plaintiff, yet if the jury were satisfied that the defendant had married without notice of the understanding that Mrs. Oaks was to pay the $550 note, and had been compelled to pay the amount himself, then although Mrs. Oaks had a trust to the amount of $700, yet he also had a trust to the amount paid by him, and the case would not come within the operation of the act of 1812. 5thly, The defendant's counsel insisted, as a matter of fact to the jury, that the land was bought and paid for by Mrs. Hoskins for her own use and out of her own money, and insisted that it made no difference how she obtained the money, whether by loan from Mrs. Oaks or from her other relations, or by secreting it out of her husband's effects, provided it was not, at the time she paid it, the money of Mrs. Oaks.

The court charged that to entitle the plaintiff to recover, the jury must be satisfied that Mrs. Oaks had bought the land, and had, for the purpose of avoiding her creditors, resorted to the plan of handing the $700 to Mrs. Hoskins, and getting her to pay it over, and get the deed in her name and execute the note, with the understanding that Mrs. Oaks was to pay the amount of the note when due; that if these were the facts, then, although the legal title was vested in Mrs. Hoskins by the deed of Sheeks, still she held the land in trust for Mrs. Oaks, and this was such a trust as was liable to execution; and the plaintiff, as purchaser under the sheriff's sale, by virtue of the act of 1812, acquired not only the trust estate of Mrs. Oaks, but also the legal estate of Mrs. Hoskins, and was entitled to recover in this action--that the position taken by the defendant's counsel, that a husband, marrying without notice, was considered in the light of a purchaser for a valuable consideration, discharged of the trust, was not...