Jefferson Standard Life Ins. Co. v. Buckner

• Decision Date: 15 June 1931
• Docket Number: 597.
• Citation: 159 S.E. 1,201 N.C. 78
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. BUCKNER et al.
• Court: North Carolina Supreme Court

159 S.E. 1

201 N.C. 78

JEFFERSON STANDARD LIFE INS. CO. v. BUCKNER et al.

No. 597.

Supreme Court of North Carolina

June 15, 1931

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Action by the Jefferson Standard Life Insurance Company against Gordon H. Buckner and others, heirs at law of Anna K Buckner, deceased, T. B. Sumner, and others. A demurrer to the complaint was filed by defendant last named and was sustained, and plaintiff appeals.

Affirmed.

The facts, briefly: Anna K. Buckner died leaving about $500 in personal property and certain land in West Asheville (now a part of Asheville) heavily incumbered; the total indebtedness of the estate being some $51,000. She left as her only heirs at law three children of full age, Gordon H., George P., and James Buckner. C. N. Penland was appointed administrator of the estate. A petition was filed before the clerk of the superior court of Buncombe county, N. C., by the administrator and heirs at law to sell the lands to pay the debts. An order of sale was made and C. N. Penland appointed commissioner to sell the land described in the petition at private sale. A report of the sale of the lands was made by the commissioner and agreed to by the heirs at law. The sale was to Frank Coxe, who in the deal was to take the property and pay off the incumbrances and convey certain property to the administrator and the administrator to assume a certain debt hereafter set forth. Coxe had theretofore made a deed of trust to Julian Price, trustee, to secure $5,000 on a certain piece of real estate which in the deal was conveyed to C. N Penland, administrator of the estate of Anna K. Buckner. In the deed is the following:

"Said last mentioned lot being subject to a deed of trust from Frank Coxe to Julian Price, Trustee for the Jefferson Standard Life Insurance Company, securing the payment of $5000.00, and heretofore recorded in the office of the Register of Deeds for Buncombe County in Book 292, page 301 the payment of which the party of the second part hereby assumes and expressly agrees to pay."

This is not one of the lots in controversy in this action.

C. N Penland, administrator, deeded two of the pieces of land acquired in the deal with Coxe to two of the heirs at law: Lot 57, block C, to James Buckner, and lot 58, block C, to George P. Buckner. They in turn conveyed said lots to T. B. Sumner, one of the defendants in this action. All these deals between the said administrator Coxe, and heirs at law of Anna K. Buckner, were approved by the clerk of the superior court of Buncombe county, N. C., and in the decree is the following: "If any surplus shall remain after the payment of said debts and charges the same is to be considered as real estate, and is to be disposed of by the administrator of said estate to and among such persons as would have been entitled to this lands according to law, and he shall deliver or have delivered, the deeds for said lands to be conveyed by the said Frank Coxe, as hereinbefore more fully set out, to the children and sole heirs at law of the said Anna K. Buckner, deceased, or in accordance with their direction, but not until all the debts of the said estate, including charges of administration and the costs of this proceeding, shall have been first paid or provided for fully and satisfactorily to the creditors of said estate."

This decree was signed August 24, 1928. Thereafter, about November 26, 1928, the administrator conveyed said above-mentioned lots 57 and 58 to James and George P. Buckner, heirs at law of Anna K. Buckner; and thereafter, on November 16, 1929, they conveyed said lots to the defendant T. B. Sumner within two years of the appointment and qualification of C. N. Penland, administrator of the estate of Anna K. Buckner.

The trustee for the plaintiff Jefferson Standard Life Insurance Company duly advertised the property under the Coxe deed in trust, which in the deal was assumed by Penland administrator. The property did not bring a sufficient amount to pay the Coxe debt, and this...