McNair v. Pope

• Decision Date: 05 April 1887
• Citation: 2 S.E. 54,96 N.C. 502
• Court: North Carolina Supreme Court
• Parties: McNAIR and others v. POPE and another.

96 N.C. 502

2 S.E. 54

McNAIR and others

v.POPE and another.

Supreme Court of North Carolina.

April 5, 1887.

Appeal from superior court, Robeson county.

T. A. McNeill, for plaintiffs.

Rowland & McLean and Wm. Black, for defendants.

DAVIS, J.

This is an appeal from an order appointing a receiver, made in the cause by GILMER, J., at the August term, 1886, of Robeson superior court. The plaintiffs are the heirs at law of Duncan McNair, deceased, who, in January, 1869, had executed a mortgage to one John McCallum, a copy of which is filled with the complaint. John McCallum died in 1871, leaving a will, with Alexander McRae and John L. McRae as executors, who duly qualified as such, and on March 9, 1875, sold the lands mentioned in the mortgage at public auction, and executing a deed purporting to convey the lands to the defendants. The plaintiffs allege that there was no authority or power in the executors of McCallum to sell under the mortgage. They further allege that the lands were laid off by the defendants with an express understanding and agreement with Duncan McNair, their ancestor, that they would buy the land for him, and take title to themselves, and hold it till the debt secured by the mortgage should be paid, when they would convey to him. They further allege that on the fifteenth day of April, 1876, Duncan McNair executed to the defendants a paper writing purporting to be a deed for said land, but that at the time it was executed the relation of mortgagor and mortgagee existed between the said Duncan and the defendant, and they insist that the conveyance was without adequate consideration, and was fraudulent and void, and, in addition thereto, that at the time of the making of said last-named conveyance it was understood and agreed that the defendants would hold the said lands only as a security for the debts therein named, and that the said Duncan had paid off the said debts, and a large part, if not all, of the $3,092.18 mentioned as the consideration of the deed; that the defendants had received a large amounts of rents, which should be credited on the debts and amounts named in the conveyance; that the said Duncan was in the possession of the land up to the time of his death, claiming it as his own; and that the plaintiffs have been in the possession thereof since the death of said Duncan, their father, claiming and cultivating the land as their own. They ask that the defendants may be declared trustees for the plaintiffs, and required to convey to them the legal title; for an account of the rents received, and for an account to ascertain the amount that was due to the defendants from Duncan McNair; and that the plaintiffs be allowed a reasonable time to pay the same, and in default thereof the lands be sold, etc.

The defendands, answering the complaint, deny specifically and in detail the allegations upon which the plaintiffs base their claim to have the defendants declared trustees, etc., and assert that the sale made by the executors of John McCallum was in pursuance of the mortgage executed to their testator by Duncan McNair, and there was no authority in the executors to sell; that the said Duncan assented to and concurred in said sale, and permitted the defendants to purchase the land for value, without objection on his part, and at all times thereafter acquiesced in the same; and that the plaintiffs, who...