Keaton v. Cobb

• Decision Date: 30 June 1830
• Citation: 16 N.C. 439
• Parties: WILLIAM KEATON AND ELIZABETH, HIS WIFE, v. ENOCH COBB AND MARY, HIS WIFE.
• Court: North Carolina Supreme Court

16 N.C. 439

WILLIAM KEATON AND ELIZABETH, HIS WIFE,

v.ENOCH COBB AND MARY, HIS WIFE.

SUPREME COURT OF NORTH CAROLINA AT RALEIGH

JUNE TERM, 1830

1. A fraudulent trustee who, pending a litigation between him and his cestui que trust, purchases the trust estate at a sheriff's sale, acquires thereby no title, and the sheriff's deed to him can stand only as a security for the amount of his bid.

2. Where the cestui, que trust incurs costs at law in defending a title purely equitable, against his trustee, and does not at once come into the proper forum for redress, he cannot in equity recover his own costs at law; but he is entitled to a repayment of the amount of costs paid to the trustee.

From WAYNE. The allegations of the bill were that in 1816 the plaintiff Elizabeth and the defendant Mary, being sisters and unmarried, purchased jointly a lot of ground in the town of Waynesboro, and contributed equally to the payment of the purchase money; that on account of the nonage of the plaintiff Elizabeth, the deed for the lot was made to the defendant Mary, who was of full age; that at the time of the purchase the lot was unimproved, and the sisters being desirous of procuring a home for themselves, as well as for their parents, who were old and infirm, agreed with their father, John Sasser, thatif he would assist in building a dwelling-house, and otherwise improving the lot, he and his wife might live in it during their lives; that accordingly the sisters procured at their joint expense the necessary materials, and a house and outhouses were erected by them, with the assistance of their father; that their father occupied the premises until his death; after which their mother and themselves lived together in great harmony, until the marriage of the defendant Mary with the defendant Cobb; that as soon as the plaintiff Elizabeth heard of the treaty for that marriage, fearing some difficulty with the intended husband, she applied to her sister to execute a deed to her for her undivided moiety; that her sister then acknowledged the right of the plaintiff Elizabeth in the fullest manner, and stated to her that the husband of the defendant could not deprive her of possession of the lot, and that with this assurance the plaintiff being perfectly satisfied, no deed was executed by the defendant Mary; that soon after the intermarriage between the defendants, the defendant Cobb, pretending to be ignorant of the agreement between his wife and the plaintiff Elizabeth, and between them and their parents, commenced an action of ejectment; and after the plaintiffs had made every defense in their power, succeeded in obtaining a verdict and judgment, and was proceeding to execute a writ of possession. The death of the mother and the intermarriage of the plaintiffs, pending the ejectment, were then averred. An injunction and a decree for the repayment of the costs at law were prayed.

The defendants denied every allegation in the bill, and as a distinct defense the defendant Cobb averred that since the controversy respecting the lot had arisen, he had, at a sheriff's sale, purchased whatever title the plaintiff Keaton had thereto, for $8.50, under a judgment and execution against him.

Upon the coming in of the answers, the injunction which had been granted on the filing of the bill was dissolved, and the defendant Cobb put in possession.

Many depositions were read at the hearing, by which every allegation of the plaintiffs was fully supported.

RUFFIN, J. The agreement charged in the bill for the joint purchase of the lot in dispute by the two sisters, and the payment of the purchase money and of the cost of putting the buildings on it by them equally, though denied in the answer, are facts proved beyond a doubt by the depositions. A conveyance to the plaintiffs of one-half must therefore be decreed.

It is, however, stated in the answer that Cobb has purchased at sheriff's sale the estate of Keaton, the...