Leggett v. Leggett

Decision Date28 February 1883
Citation88 N.C. 108
CourtNorth Carolina Supreme Court

CIVIL ACTION tried at Fall Term, 1882, of BEAUFORT Superior Court, before Gilliam, J.

In 1871, Henry Leggett died in Beaufort county seized of several parcels of land, which for want of lineal heirs descended to his brothers and sisters, eight in number, and including both the plaintiff and the defendant. Subsequently to his death, though at different dates, the plaintiff and defendant executed deeds, whereby they purported to convey their respective interests in the estate of their brother to one Harper H. Coor.

In 1872, certain of the heirs filed their petition in the superior court, seeking to have the lands sold for partition. To this petition, neither the plaintiff nor defendant were parties, but the said Coor, as having purchased their shares, was made a party defendant. The proceeding pended until spring term, 1874, when an order of sale was made, and the clerk of the court was appointed a commissioner to make the sale, which he did in July of that year upon a credit of twelve months, reserving the title until the purchase money was paid. The sale was afterwards confirmed by the court, with directions to make title to the purchasers upon the payment of the purchase money.

During the pendency of the proceedings, the said Coor made a deed to the defendant, purporting to convey to him all the interest which he (Coor) had acquired in the estate of the said Henry, but still, the defendant was not made a party to the proceeding.

Amongst the lands so sold was a tract known as the “Biggs tract,” and containing 210 acres, which was bid off by the defendant at the price of $635; of this sum $127 was paid in cash on the day of sale, and the defendant gave a bond for the residue with the plaintiff and the said Coor as sureties. This balance was afterwards paid to the commissioner, from whom the defendant procured a deed in his own name.

In his complaint, the plaintiff alleges that it was expressly agreed between the defendant and himself that the land should be bought for the benefit of them both, to be held according to the amount they might each contribute to the purchase money; that accordingly they both attended the sale, and the land was really purchased by the defendant for their mutual benefit, and with this understanding, the plaintiff furnished the money to make the cash payment of $127; that notwithstanding his deed to Coor, the plaintiff had a full share in the lands of his brother which were sold, amounting to the sum of $178.32, which was afterwards applied as a credit on the note given for the purchase money, and that he also made another cash payment of $151.36, and that all that was ever contributed by the defendant was his share in the lands, amounting to $178.32; that notwithstanding their agreement, and the fact that the plaintiff had contributed so largely towards the payment of the purchase money, the defendant had fraudulently procured the deed to the whole land to be made to himself, and refuses to recognize him as having any interest therein; and the prayer of the complaint is that the defendant be declared a trustee for the plaintiff, and be required to convey to him two-thirds of the land so purchased.

In his answer, the defendant denies that there was any such agreement as that alleged by the plaintiff, and avers that he bought the land for his own sole use and benefit, and that he has paid for the same out of his own money, and without any help on the part of the plaintiff, or any understanding that he should help. He admits that about that time he received several sums of money from the plaintiff, but these were paid him for horses and other property sold to the plaintiff, and for which there is still a balance due him from the plaintiff.

On the trial, the plaintiff was examined as a witness, and testified substantially the same with the allegations set forth in his complaint, except that he added that the deed which he had made to Coor for his interest in his brother's estate, was without consideration, and was intended to be for his own use and benefit, which fact was well understood and agreed to by both Coor and the defendant. He also stated that on the very day of the sale the defendant admitted to the clerk, who as commissioner was making the sale, that he was purchasing for the joint benefit of himself and the plaintiff, and that the latter was entitled to a full share of one-eighth in the lands belonging to the estate of their deceased brother, and that the same was to go as a credit upon the purchase money of the “Biggs tract.” He also testified that certain notes which he had given to the defendant, and upon which judgments had been taken, were obtained from him while drinking, and that he had received nothing of value for them, and had never bought any horses or mules from the defendant; and also, that he had not authorized the defendant to have the deed made to himself, or to tell Mr. Brown, their counsel, to allow it to be so made.

Further evidence was offered on the part of the plaintiff as follows:

G. H. Brown, Jr., testified that he was employed by the plaintiff and defendant as their attorney, in the proceedings for partition, and did not know Coor in the matter at all; that he was present at the sale when the defendant bid off the land, and plaintiff was also present, and his share and that of the defendant in the whole of the lands sold, were credited on the purchase money for the Biggs land; that some time after the sale, the defendant came to the office of witness, and said that the plaintiff had instructed him to tell the witness to have the deed for the land made to himself alone; that witness thereupon inquired why that should be, as it was understood that he had bid off the land for both the plaintiff and himself, to which the defendant replied that he had made it all right with the plaintiff; that acting upon this assurance, he had instructed the clerk to make the deed to the defendant, and that for his services in the matter he was paid equally by both of the parties.

John Dudley testified that at the time of the sale and when the land was bid off, ...

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13 cases
  • Kelly Springfield Tire Co. v. Lester
    • United States
    • North Carolina Supreme Court
    • November 4, 1925
    ... ... "owns" the purchase money, unless a contrary ... intention, or a contrary presumption of law, prevents. Holden ... v. Strickland, supra; Leggett v. Leggett, 88 N.C ... 108; Thurber v. La Roque, supra; Cobb v. Edwards, supra; ... Henderson v. Hoke, 21 N.C. 119; Mosely v ... Mosely, 87 N.C ... ...
  • Heflin v. Heflin
    • United States
    • Alabama Supreme Court
    • June 8, 1922
    ... ... Coles v. Allen, 64 ... Ala. 98; Rhea v. Tucker, 56 Ala. 450. See, also, ... Marvin v. Brooks, 94 N.Y. 71; Leggett v ... Leggett, 88 N.C. 108; Brown v. Cave, 23 S.C ... 251; Mims v. Chandler, 21 S.C. 480; Cook v ... Sherman (C. C.) 20 F. 167, 4 McCrary, 20 ... ...
  • Cobb v. Edwards
    • United States
    • North Carolina Supreme Court
    • November 11, 1895
    ... ... Holden v ... Strickland, 116 N.C. 185, 21 S.E. 684; Thurber v. La ... Roque, 105 N.C. 306, 11 S.E. 460; Leggett v ... Leggett, 88 N.C. 108. But, where the legal estate is not ... conveyed, a trust cannot be raised by a parol declaration, ... even though ... ...
  • Walker v. Sager
    • United States
    • Oklahoma Supreme Court
    • July 10, 1917
    ...was not entitled cannot be raised for the first time on appeal. Danziger v. Metropolitan El. Ry. Co., 81 Hun 5, 30 N.Y.S. 580; Leggett v. Leggett, 88 N.C. 108; Weigle v. Cascade Fire & Marine Ins. Co., 12 Wash. 449, 41 P. 53." ¶4 2. "The action of a county court in this state in approving a......
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