Kemp v. Kemp
| Decision Date | 31 October 1881 |
| Citation | 85 N.C. 491 |
| Court | North Carolina Supreme Court |
| Parties | JAMES I. KEMP and wife v. JOSEPH R. KEMP and others. |
OPINION TEXT STARTS HERE
MOTION in the cause heard at Fall Term, 1879, at BLADEN Superior Court, before Seymour, J.
This cause comes to this court upon the appeal of James I. Kemp and wife Elizabeth, from the ruling of the superior court of Bladen county upon their petition for relief, filed in a proceeding theretofore had in the old court of equity, under which the interest of the said Elizabeth in certain lands had been sold. The facts necessary to be known for a proper understanding of the case are as follows:
The feme plaintiff (whose maiden name was Fitz Randolph) by her guardian, George Cromartie, filed her petition in the court of equity at fall term, 1849, asking that her one-fifth interest in certain lands might be sold, and at the same term an order was made directing the clerk and master to sell the same upon a credit of one, two and three years, and to reserve the title until the purchase money was paid. The master reported a sale to spring term, 1850, to Benj. Fitz Randolph, one of the defendants in the present motion, and that he had taken his bond for the purchase money, with the defendant Joseph R. Kemp as surety. There seems to have been no order confirming the sale made at that time, but at fall term, 1854, it was ordered that upon the payment of the purchase money, with compound interest, or the guardian's acceptance of the bond given for the purchase money in lieu thereof, the clerk and master should make title to the purchaser.
At this stage of the case, the said Elizabeth having become of full age, intermarried with the plaintiff James I. Kemp, and in pursuance of an ante-nuptial agreement to that effect, the two joined in a deed on the 10th day of November, 1856, whereby they conveyed, together with other property belonging to the wife, her interest in the bond given for the purchase money of the land, to the defendant Joseph R. Kemp (he being the father of the husband) in trust for the sole and separate use of the said Elizabeth, free from all incumbrances of her said husband, and in case of her death, leaving him surviving, then in trust for him during his life, and after the death of both, then in trust for the children of the said Elizabeth; or in the event of her dying without children, in trust for her rightful heirs; which trusts were accepted by the said Joseph R.
At spring term, 1857, of the said court of equity, it was ordered that upon the payment of the purchase money into court, or upon the exhibition of a duly authenticated receipt of the said Elizabeth, with her private examination taken according to law, the clerk and master should convey the land to the purchaser, the same order providing for the costs, and the cause was dropped from the docket.
At spring term, 1858, it was ordered that the cause be reinstated, and the husband be made a party, and that the clerk and master collect the purchase money and make title to the purchaser.
At spring term, 1859, the court directed that the clerk and master should proceed forthwith to collect the whole amount of the purchase money without any deduction or allowance, on account of any payment made to, or receipt given by, the trustee of the said Elizabeth under the marriage settlement, or any other person, and hold the same subject to the order of the court.
No further order was made in the cause until fall term, 1863, when the court decreed that the purchaser, Benj. F. Randolph, should pay the amount due the plaintiff Elizabeth, to Joseph R. Kemp, her trustee in the marriage settlement, to-wit, the sum of twelve hundred dollars, with interest thereon from spring term, 1858, out of which sum the costs of the proceeding should be paid; and that the clerk and master so soon as, by the receipt of the said Joseph R. as trustee, he shall be advised and assured that the money has been so paid to him, shall proceed to convey the land to the purchaser.
About the year 1860, as the judge's case states, the trustee, Joseph R. Kemp, agreed with the plaintiff James I. and his wife to give her a tract of land, upon a bargain then made between them, that the land should be taken in full payment of all her claims upon him as her trustee, of which land the plaintiffs took immediate possession, and have continued in the same up to the present time. At the time of such agreement (which was altogether by parol) the said Joseph R. was solvent, and so continued to be up to the close of the war. No deed was ever executed to the said Elizabeth for the land, but the said Joseph R. now proffers to make her one. Some judgments have since been recovered against him, and are yet unsatisfied and docketed. Subsequently to the agreement between the plaintiffs and the trustee about her taking the tract of land from him, but at what exact time does not appear, the purchaser Benj. F. Randolph settled with the trustee, without paying him any money towards the purchase of the land, but by surrendering to him a bond of date the …… day of April, 1859, which he the said Randolph held against the trustee individually--this settlement being also made before the insolvency of the trustee. No deed was ever made to the purchaser by the clerk and master or other officer of the court, but in 1878 the said Joseph R., as the trustee of the plaintiff, executed a deed for the interest of the plaintiff Elizabeth to the said Randolph--this was after the plaintiffs had given notice of their motion in the cause.
A receipt from Joseph R. Kemp as trustee, purporting to have been given to the clerk and master, on the 4th day of February, 1859, for the purchase money of the land, was put in evidence, but his Honor finds that it was not given at the time it bears date, and there is nothing in the statement to fix its true date.
Upon the foregoing facts, his Honor ruled, as...
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