McEachern v. Gilchrist

• Decision Date: 30 June 1876
• Citation: 75 N.C. 196
• Court: North Carolina Supreme Court
• Parties: MARGARET A. MCEACHERN v. ANGUS GILCHRIST and others.

75 N.C. 196

MARGARET A. MCEACHERN

v.ANGUS GILCHRIST and others.

Supreme Court of North Carolina.

June Term, 1876.

J. F. executed and delivered deeds of gift, conveying certain real property to each of his four children; he conveyed to M. and E. three tracts of land, as tenants in common for life, with remainder in fee to such children as they might have living at the time of their death, reserving to himself a life estate in said lands, subject to the following incumbrances, to-wit: “and if there shall be any indebtedness existing against the estate of the said J. F., (the grantor,) at the time of his death, which the property belonging to his estate, and not disposed of by him in his lifetime, shall not be sufficient to pay off and satisfy,” he directs that the same “shall be paid in equal parts by his four children, to-wit: R., E., M. and H., and the property, both real and personal, hereby given, &c., to them and each of them, or for their benefit severally, is hereby charged and encumbered with one-fourth part of such indebtedness, which is to be paid off and satisfied before said children, or any of them, is to take benefit from this indenture.” J. F. executed a mortgage to A. W. and S., the children of E., and remainderman under said deed, conveying his life estate in said lands, and also other property not before disposed of by him, to secure the payment of the debt. E. died, leaving her surviving, A., S. and W., remainderman, and tenants in common with M.; J. F. died, leaving the mortgage debt unpaid; and his, J. F's property, undisposed of by him, is not sufficient to pay off said debt. M. brought an action against A., W. and S., for a partition of said land: Upon the foregoing facts, it was held, that the terms of the deed did not constitute a condition precedent, but a charge and incumbrance upon the land, into whosoever's hands the same may come:

Held further, that the fact that M. was seized of an estate for life only, and A., W. and S. were seized in fee simple, was no bar to an action for partition; and that the pendency of an action for the foreclosure of the mortgage was no defence to the action for partition.

PETITION for PARTITION, tried before SCHENCK, J., at Spring Term, 1876, of the Superior Court of RICHMOND.

The facts necessary to an understanding of the case are stated in the opinion of the Court.

There was judgment for the plaintiff, and the defendants appealed.

Busbee & Busbee, for appellants .

W. McL. McKay, contra .

BYNUM, J.

In the year 1855, John Fairly being the owner of a large estate in lands and personal property, executed a deed of gift of lands and negroes, to each one of his four children. Among them he made a deed of gift of the three tracts of land, the partition of which is sought in this action, to his two daughters, Margaret and Effey, for life, to hold as tenants in common, and at their death to such children as they might have living at their death, in fee; subject, however, to two encumberances. He first reserves a life estate to himself in the lands conveyed; and the second encumberance is in the following words: “And if there shall be any indebtedness existing against the estate of the said John Fairly, at the time of his death, which the property belonging to his estate and not disposed of by him in his life time, shall not be sufficient to pay off and satisfy, he directs that the same shall be paid in equal parts by his four children, Robert, Effey, Margaret and Henry; and the property both real and personal, hereby given, &c., to them and each of them or for their benefit, severally, is hereby charged and encumbered with one-fourth part of said indebtedness; which is to be paid off and satisfied before said children or any of them is to take benefit from this indenture.”

Long subsequent to this deed of gift, to-wit: in 1868, John Fairly, being indebted in the sum of $6,300 to Angus, William and Sally Gilchrist, children of his daughter Effey, and the...