Murray v. Hazell

• Decision Date: 12 March 1888
• Citation: 5 S.E. 428,99 N.C. 168
• Parties: MURRAY v. HAZELL.
• Court: North Carolina Supreme Court

5 S.E. 428

99 N.C. 168

MURRAY v. HAZELL.

Supreme Court of North Carolina

March 12, 1888

Appeal from superior court, Alamance county; PHILIPS, Judge.

A deed by an assignee in bankruptcy, made subject to the bankrupt's homestead, not being a cloud on his title does not furnish ground for an action to set it aside as such.

J. A Long and Batchelor & Devereux, for plaintiff and appellant.

E. S Parker and Graham & Ruffin, for defendant and appellee.

MERRIMON J.

The plaintiff was duly adjudged a bankrupt in a court of bankruptcy, and thereafter, according to law, the assignee in bankruptcy assigned to him his homestead in an undivided two-thirds interest in the tract of land mentioned in the complaint. The complaint alleges: (3) That afterwards to-wit, on the 31st day of May, 1884, the said assignee advertised and sold said tract of land, subject to the homestead interest of said bankrupt, and at said sale G. M Hazell became the purchaser; (4) that afterwards, to-wit, on the 6th day of January, 1885, the said assignee executed and delivered to the said G. M. Hazell a deed in fee-simple, conveying to him the said two-thirds undivided interest in said tract of land, subject to the homestead of plaintiff, which deed is duly recorded in book--, page--, in the office of the register of deeds of Alamance county, to which reference is hereby made, and which deed is prayed to be taken as a part of this allegation; (5) that on the ___ day of ___, 1885, the plaintiff received his discharge in bankruptcy; (6) that said deed being spread upon the register's book of Alamance county, and purporting to convey, as it does, the reversion after the homestead estate, this plaintiff is informed and believes it is invalid in law, --is a cloud upon plaintiff's title. Whereof the plaintiff demands judgment: (1) That said deed be delivered up to be canceled: (2) for such other and further relief as to the court shall seem fit; (3) for the costs of this action. The material parts of defendant's answer are as follows: That article 4 is admitted, except the allegation that plaintiff is the owner of a two-thirds undivided interest in the land described; and that is denied. The plaintiff is in possession of said land, and has an estate therein for the term of his natural life, and should he die leaving infant children, then to survive till the youngest arrives at the age of 21 years; while the defendant is the owner of the fee-simple estate in said land, and his right to possession will accrue upon the death of plaintiff, or upon the arrival at the age of 21 years of his youngest living child, whichever of these two events shall last happen. In answer to article 3 defendant says that the sale alleged was made by order of the district court of the United States for the Western district of North Carolina, held at Greensboro; that defendant did buy said land at said sale subject to the life-estate of defendant, and, should he die leaving infant children, then said children to have an estate therein till the youngest living one arrives at the age of 21 years; that at said sale the plaintiff was present with his wife, who was a competitor of defendant in the bidding for said land, the plaintiff standing by her, and prompting and directing her bidding. That in answer to allegation in article 4 the defendant says: That after said sale J. A. McCauley, the assignee in bankruptcy of plaintiff, made full report of said sale to said district court of the United States, and thereupon a copy of said report of said sale was served upon plaintiff, and also upon his wife, together with a notice from said court to said plaintiff and his said wife to show cause, if any they could, why said sale should not be confirmed by said court, and said plaintiff and his wife both failed to file any exceptions to said report, or show any cause why the said report and sale should not be confirmed; and, after the time limited to file exceptions or show cause, an order of said court was made confirming said sale, and directing title to be made to the defendant for said land, and...