Peacock v. Stott

• Decision Date: 18 November 1889
• Citation: 104 N.C. 154,10 S.E. 456
• Court: North Carolina Supreme Court
• Parties: Peacock v. Stott.

10 S.E. 456

(104 N.C. 154)

Peacock

v.Stott.

Supreme Court of North Carolina.

Nov. 18, 1889.

Merger op Estates — Removal op Cloud from Title.

1. A complaint to enforce a parol trust alleged that the trustee, who held the land in trust to convey the same to the cestui que trust, on payment of a certain sum, conveyed it to defendant, with notice of the equities, to "prevent his creditors from reaching his land." Judgment was recovered against the trustee, and the land sold under execution, and acquired by the cestui que trust from the purchaser. Held, that the equitable was merged in and extinguished by the legal title; and that plaintiff, who had purchased the land at a foreclosure sale under a mortgage of the cestui que trust, could not sue to remove the cloud from his title, as he had failed to put in issue defendant's allegation that he was in rightful possession, and did not definitely allege that the conveyance of the trustee was void as in fraud of his creditors.

2. Where plaintiff fails to amend such complaint, it will be dismissed by the court, ex mero motu.

On rehearing. For former report see 7 S. E. Rep. 885.

In an action by J. W. Peacock against Henry Stott, to enforce a parol trust, the complaint alleged that Alvin Peacock, the owner of several tracts of land, conveyed them to J. M. Taylor in trust to secure cer-tain debts, with a power of sale in case of default in payment. The land was subsequently sold to several of the secured creditors under an agreement with Alvin Peacock that they would hold the title thereto until plaintiff could raise the money and reimburse them, when they would reconvey to him. Thereafter Alvin Peacock gave a sum, insufficient to redeem, to Levi Bailey, to be applied in payment, under an agreement that the lands should be conveyed to him, and be held by him on trusts similar to those under which the secured creditors held. Afterwards, Bailey, being sued on a large demand, in order to prevent the subjection of the property thereto in case of recovery, conveyed the same, with the exception of two tracts, to defendant Stott, without consideration, and with notice to defend ant of the equities. Judgment was recovered against Bailey, and the land sold under execution to K. A. Hamilton, who conveyed the same to Alvin Peacock. Thereafter plaintiff purchased all of Alvin Peacock's interest in the land at a foreclosure sale under the lat-ter's mortgage, and took the commissioner's deed for the same. During the whole period Alvin Peacock remained in undisturbed possession. Bailey died meanwhile, and defendant refused to execute the trust, denying the same, and alleged that the respective conveyances to Bailey and himself had been for valuable consideration, and absolute, and that he had purchased bona tide, without notice. Pending the suit defendant died, and his heirs were substituted In his place. The court held that the deed from Bailey to defendant was void as against the suing creditors, and that the fee-simple title passed under the execution sale to Hamilton, and from him to Alvin Peacock, and that, the legal and the alleged equitable titles thus uniting in one person, the latter became extinguished, and there was therefore no equity in the complaint to enforce the trust.

C. M. Cooke and F....