Hobbs v. Cashwell

• Decision Date: 23 March 1910
• Parties: HOBBS et al. v. CASHWELL et al.
• Court: North Carolina Supreme Court

67 S.E. 495

152 N.C. 183

HOBBS et al. v. CASHWELL et al.

Supreme Court of North Carolina

March 23, 1910

Appeal from Superior Court, Sampson County; Guion, Judge.

Action by E. L. Hobbs and others against George W. Cashwell and others. Judgment for plaintiffs, and defendants appeal Reversed and remanded.

Persons who claim as donees under a deed of gift by an intestate are not estopped to assert title by an action, brought against the administrators and heirs at law by creditors of the intestate, to sell the property transferred by the intestate to plaintiffs and others to pay the debts of intestate, where the persons holding the property were not made parties to the action.

Civil action tried before Guion, J., and a jury, at January special term, 1910, of the superior court of Sampson county. The evidence offered at the trial by the plaintiffs, the defendants offering no evidence, disclosed the following facts: G. W. Hobbs, the grandfather of plaintiffs, was, prior to May 8, 1893, the owner in fee and in possession of several tracts of land in Sampson county; on that day he made a distribution of his lands among his seven children, conveying to them, by separate deeds, certain described tracts of land. The recited consideration in each was $1 and love and affection. He reserved for his wife, Mary, a life estate in all, and for himself a life estate certainly in one hereinafter mentioned, and perhaps in others. All the deeds were not set out. G. W. Hobbs retained no land other than his life estate above mentioned.

The particular land which the plaintiffs seek to recover in this action contained the following recitals, premises, and habendums: "That whereas said parties of the first part (G. W. Hobbs and wife, Mary Hobbs,) are desirous of making provision for said party of the second part (E. W. Hobbs), by reason of their natural love and affection for him, their son: Now, therefore, in consideration of the premises and the further consideration of one dollar, to them in hand paid etc., the said parties of the first part do hereby convey to the said party of the second part the following bounded and described tract of land, viz.: [then follows the description] containing 284 acres more or less, subject to and depending upon the following conditions, qualifications and limitations, viz.: That first and foremost the said parties of the first part reserve to and for themselves a life estate in the lands herein described, that is, that this conveyance shall in no way operate to convey possession or right of possession until the death of both the said G. W. Hobbs and wife, Mary Hobbs; and the said parties of the first part have given, granted and conveyed, and by these presents do give grant and convey unto the said party of the second part, an estate for the term of his natural life in said lands and no longer or further, which is to take effect and operate after the death of both the said G. W. Hobbs and wife, Mary Hobbs and not until then. And the said parties of the first part do hereby give, grant and convey the remaining estate in said land in fee simple, absolutely and forever, to such of the lawfully begotten issue of the said party of the second part as may be living at the time of his death, to their heirs and assigns forever, to be equally divided between said issue the same to take effect and operate when the particular estate for life, of the said party of the second part, shall have determined by his death. But should parties of the first part, or either of them, survive the said party of the second part, then upon the death of such party or parties of the first part, by virtue of this conveyance, a fee-simple estate in said land shall vest in such lawfully begotten issue of the party of the second part as may then be living and their heirs and assigns, the same to be equally divided between said issue. Which estate the said parties of the first part do hereby grant and convey to such lawfully begotten issue, their heirs and assigns. To have and to hold unto the said party of the second part such an interest in the aforesaid tract of land as hath been hereby conveyed, and to the lawfully begotten issue of the said party of the second part, as above specified, their heirs and assigns."

This deed was duly acknowledged, probated, and registered on May 9, 1893. The plaintiffs are the surviving children of E. W Hobbs, and the above deed covers the land in suit. The plaintiffs offered the following court records: Judgment: A. M. Lee against T. M. Ferrell, J. A. Ferrell, and G. W. Hobbs, docketed February 14, 1894, for $926.97, 8 per cent. interest from February 6, 1894, and costs, $6.30. The complaint in the action in which the above judgment was recovered, stating as its cause of action the nonpayment of a note under seal, dated September 14, 1887, for $778.91. The summons in this action was issued December 21, 1893. The judgment was rendered by, and docketed in, the superior court of Sampson county. Summons dated April 9, 1901, in action entitled: "A. M. Lee, for Himself and All Other Creditors of G. W. Hobbs, Deceased, Who will Join in, etc., against W. A. Hobbs, Adm'r of G. W. Hobbs, W. A. Hobbs, and Others [giving names], Heirs at Law of G. W. Hobbs, and Mary Hobbs, Widow." Some of the defendants accepted service, and service was made upon others by a proper officer. The complaint in that action, duly verified, which, among other things, set forth the judgment in favor of A. M. Lee; the lien of the judgment on the lands; that the judgment was unsatisfied, except that W. A. Hobbs paid $136.23 July 14, 1899, and the sum of 213 was paid February 5, 1900; that W. A. Hobbs qualified as administrator of G. W. Hobbs on December 8, 1899, and "has filed his report, saying his father, G. W. Hobbs, died leaving no personal property"; that the administrator, though requested, had refused to file petition to make real estate assets; that G. W. Hobbs, on the days mentioned, conveyed to the defendants in that action, his heirs at law, by deeds of gift, the following described tracts of land (then follows a reference to the recorded deeds to the several defendants, and the statement of the acreage in each deed); that at the time said deeds of gift were executed, the grantor was indebted to the plaintiff Lee, and the debt reduced to judgment as aforesaid. The names of the heirs at law are given, and the prayer for sale of the land described for the payment of the debt. It seems that no answer was filed to this complaint. An order of sale was entered by the court at September term, 1901, reciting the material allegations of the complaint, and John D. Kerr was appointed commissioner to sell the lands described in the complaint, and he was directed to "sell said lands in separate tracts, according to said deeds to said defendants, heirs of G. W. Hobbs, and to pay off the share of each of said heirs in said judgment debt, out of the proceeds of said sale of the part of said land so deeded to each defendant." Thirty days was allowed for the payment of the said judgment debt; and, if not then paid, the commissioner was ordered to advertise and sell the land at the courthouse door in said county of Sampson. The debt not being paid, the commissioner advertised the land for sale by separate tracts and sold the same on Monday December 16, 1901. The advertisement of the sale by the commissioner was offered in evidence. For the land included in this action Emma J. Hobbs, the mother of plaintiffs and wife of E. W. Hobbs, became the highest bidder, at $1,250. The sale was duly reported by the commissioner, and confirmed by the court at May term, 1902, and commissioner directed to make deeds to the purchaser; the report of commissioner and order of confirmation being offered in evidence. The commissioner, by direction of Emma J. Hobbs and her husband, executed two deeds for the land purchased by her-- one to A. C. Vann, June 9, 1902, for 66 3/4 acres, which is not embraced in the present action, and the other to the defendant Geo. W. Cashwell, for the remainder of the tract; both deeds being offered in evidence. There was evidence that Mrs. Mary Hobbs, the widow of G. W. Hobbs, was dead, and that E. W. Hobbs died in 1907, leaving surviving the plaintiffs as "his lawfully begotten issue." The defendant Cashwell admitted his possession under his deed. In his answer filed the defendant denied that plaintiffs were the owners of the lands, they claiming in their complaint under the deed from G. W. Hobbs and wife; asserted title in himself under the creditor's action hereinbefore recited, and that G. W. Hobbs was indebted to A. M. Lee; that the deed of G. W. Hobbs, under which plaintiffs claimed, was a deed of gift; that the land was condemned to be sold to pay said debt, and that he is a purchaser thereof; that he mortgaged the same to his codefendant, B. F. Powell. The plaintiffs alleged in their complaint that they were the owners of the land described, and entitled to possession; that they claim under deed of G. W. Hobbs and wife to E. W. Hobbs, which is referred to and made a part of the complaint; that they are the children of E. W. Hobbs; "that on April 9, 1901, A. M. Lee and other creditors brought a suit in the nature of a creditor's bill, against W. A. Hobbs, administrator of G. W. Hobbs and E. W. Hobbs, and other heirs at law of G. W. Hobbs, to subject, among other lands, the above-described land to the payment of the debts of G. W. Hobbs; that in said action these plaintiffs were not made parties plaintiff or defendant; that in said suit one J. D. Kerr was appointed commissioner to sell, among other lands, the lands above described and claimed by these plaintiffs; that he did pretend to sell the above-described lands to defendant George W....