Love v. Smathers

• Decision Date: 31 January 1880
• Citation: 82 N.C. 369
• Court: North Carolina Supreme Court
• Parties: R. G. A. LOVE v. J. C. SMATHERS.

82 N.C. 369

R. G. A. LOVE

v.J. C. SMATHERS.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION to recover possession of Land, tried at December Special Term, 1879, of HAYWOOD Superior Court, before Graves, J.

Verdict and judgment for defendant, appeal by plaintiff.

Messrs. J. H. Merrimon and A. W. Haywood, for plaintiff .

Messrs. Merrimon, Fuller & Fuller, for defendant .

DILLARD, J.

This is an action to recover land, and the facts material to the points on which the case is decided in this court are as follows: William Johnston contracted to sell the land in controversy to one John Moody, and took the vendee's bonds for the purchase money and gave to him his own bond for title. Afterwards, John Moody, having paid a part only of the purchase money, procured the vendor to take his bond for the balance due, with his son, H. M. Moody and J. R. Love, as sureties and surrendered his original bonds. This being done, Johnston, on the written request of John Moody, executed title to the son, H. M. Moody, and the jury find that H. M. Moody agreed orally with John Moody that he would pay the balance still due of the purchase money to Johnston, and that they have never paid any part thereof.

H. M. Moody, in December, 1865, sold and conveyed to defendant, Smathers, the jury say, for a valuable consideration and without notice of the oral agreement between John Moody and H. M. Moody for the payment of the debt to Johnston by H. M. Moody. The debt not being paid to Johnston, he sued on the bond of John Moody, H. M. Moody and J. R. Love; and on the recovery of judgment, J. R. Love or his executors paid the amount thereof. Thereupon the executors of J. R. Love brought suit to spring term, 1873, against John Moody, the principal, for the sum paid as his surety, and at the return of the writ, John Moody confessed judgment therefor, which the defendant alleged and the jury found was fraudulently obtained, after the sum had been previously paid to the executors of J. R. Love, with the intent thereby to defeat his title under H. M. Moody. On this judgment the lands of defendant, conveyed to him mediately from John Moody through H. M. Moody, was levied upon and sold by the sheriff, when the plaintiff, who was one of the executors of J. R. Love, became the purchaser under execution and received the sheriff's deed, purporting to convey the land to him, and upon this title the plaintiff brings this action and demands judgment for the possession.

There was an execution in favor of one Killian in the hands of the sheriff at the time of the sale, issued on a judgment of prior lien to the judgment in favor of Love's executors, but obtained after the sale and conveyance to defendant, to which the money raised by the sale was applied. And evidence of this fact was offered and admitted to meet the defence of invalidity of the judgment in favor of Love's executors, under which the sale was made according to the recitals in the sheriff's deed, and there was exception to the proof received to show the collusion and fraudulent character of the Love judgment.

Our opinion proceeds on the assumption that the Love judgment was valid, and that the sheriff having in his hands an execution on that judgment, and also on the judgment in favor of Killian, sold under both; and therefore it is not necessary to pass on the exceptions to the evidence admitted for the impeachment of the Love judgment, nor on the question of the sufficiency of the Killian execution in the hands of the sheriff, to sustain the plaintiffs' title, notwithstanding the recital in the deed of a sale under the Love execution only.

Stripping the case of all unnecessary issues and facts, the question for our consideration and determination is, whether, assuming the sale to have been made under both of the executions and that they were valid, the debtor, John Moody, had at the time of the sale any title, legal or equitable, such as might be sold under execution and a title pass under the sheriff's deed. We are of opinion that John Moody had not such a trust estate as conld be levied upon and sold under execution. A trust estate of a debtor in land could not be levied on and sold under execution...