Proctor v. Ferebee
| Decision Date | 31 December 1840 |
| Citation | 1 Ired.Eq. 143,36 N.C. 143,36 Am.Dec. 34 |
| Parties | SAMUEL J. PROCTOR v. SAMUEL W. FEREBEE. |
| Court | North Carolina Supreme Court |
A testator by his will devised, among other things, as follows: “I leave all my lands not given away, to be sold at six and twelve months credit; after my debts are paid, the residue of my estate to be divided between my wife, daughter and son,” and he appointed an executor “to sell his lands before mentioned,” and to execute his will in all respects, it was held that the testator intended a sale of his real estate at all events, either to create a fund for the payment of debts, in room of a part of the personal estate, or for a division between the wife, daughter and son; and that therefore, in this Court, the fund is considered as converted, out and out, into personalty.
Held further, that where, in this case, the executor had refused to qualify and an administrator with the will annexed had sold the lands, and a Court of Law had decided that he had no power to convey a legal title, yet as the administrator had disposed of the proceeds of the sale according to the directions of the will, the heirs at law of the testator were but trustees for the purchaser, and should be decreed to convey to him the legal title.
This was a bill filed by the plaintiff against the defendant, in Pasquotank Court of Equity, to which there was an answer by the defendant, and which, at the Spring Term, 1840, of that Court, was set for hearing, and ordered, by consent, to be transmitted to the Supreme Court.
The facts, as exhibited by the bill, answer and proofs, appeared to be these:
Thomas P. Williams died about October, 1799, having first made a last will and testament, executed in due form to pass real estate, which was admitted to probate in the County Court of Currituck, where he resided. Of this will he appointed Malachi Sawyer executor, who refused to qualify, and letters of administration with the will annexed were duly granted to Thomas C. Ferebee, who qualified and took upon himself the execution of the said trust. The testator in and by his said will devised, among other things, as follows:
“I leave all my lands not given away, to be sold at six and twelve months credit; after my debts are paid, the residue of my estate to be divided between my wife, daughter and son before mentioned.”
In another part of the will the testator adds:
“I nominate and appoint Malachi Sawyer, Esq., of Camden county, my whole and sole executor to this my last will and testament, to make sale of my lands before mentioned, and to execute this instrument of writing in every respect whatever.”
Thomas C. Ferebee intermarried with Elizabeth, the daughter of the testator, and after his qualification as administrator with the will annexed of the testator, filed his bill in the Court of Equity for the District of Edenton, praying for a sale of the lands belonging to the testator, not specifically devised. The said Court decreed a sale of the same to be made by the said administrator. Of the lands thus decreed to be sold, there was a tract, lying in the county of Camden, (and particularly described in the bill.) The said tract was offered for sale under this decree, and Enoch Sawyer being the highest bidder, became the purchaser thereof, and received a deed in fee therefor from the said Thomas C. Ferebee, as administrator as aforesaid. The said Enoch Sawyer subsequently conveyed the said land in fee simple to Frederick B. Sawyer. The said Frederick B. Sawyer died, leaving the mother of the plainf??iff his only heir at law; and the plaintiff is the heir at law of his mother. The plaintiff's bill further charged that the said Frederick B. Sawyer, in his lifetime, commenced reclaiming the land included in the said tract, which was, at the time of his purchase, unimproved swamp land, and considered to be of little value; that by the labor and exertions of the said Frederick and his heirs, the said land had been reclaimed and become of great value. The bill further alleged, that by the will of the said Thomas P. Williams, the lands before mentioned were, in equity, converted into personalty; that the administrator with the will annexed had credited, in his account with the estate of his said testator, the proceeds of the sale of the said land, and had actually applied them, in a due course of administration, to the payment of the debts of the estate, or had paid them over according to the directions of his said will. The plaintiff further charged that he and those under whom he claimed, had the actual possession of the said land for twenty years and upwards, during which time they had greatly improved the same. The bill further charged that the tenant of the plaintiff, being in the possession of the said land, the said Samuel W. Ferebee, defendant in this suit, commenced an action of ejectment against him in Camden Superior Court of Law, which suit was ultimately decided in the Supreme Court (see Ferebee vs. Proctor, 2 Dev. & Bat. 439,) in favor of the lessor of the plaintiff; that the said recovery was effected upon the technical ground that the said Thomas C. Ferebee, as administrator, was not authorized to sell and convey the legal title to the said estate; and that the said Samuel, after his said recovery at law, entered into the possession of the said estate, and refused to convey it to the plaintiff; and the bill called for a conveyance, & c.
The answer of defendant admitted all the facts above stated, except that it insisted that the recovery at law...
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...by exchange of deeds between the parties pursuant to the court's decree. 59 Am.Jur.2d Partition, § 88; Gay v. Parpart, supra. In Proctor v. Ferebee, 36 N.C. 143, this Court considered a decree allotting land and there We must remark that the defendant is mistaken as to the ground of the rec......
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...v. Rankin, 36 111. 293; Collins v. Champ's Heirs, 15 B. Mon. 118; Kane v. Gott, 24 Wend. 641; Bramhall v. Ferris, 14N.Y. 41; Proctor v.Ferrebee, 1 Ired. Eq. 143; Burr v. Sim, 1 Whart. 252, 29 Amer. Dec. 48, and note, 57; Smilie v. Biffle, 2 Pa. St. 52, 44 Amer. Dec. 156, and note, 159; Carr......
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... ... F. Cas. 154; Massie v. Watts , 6 Cranch (U. S.), 148, ... 3 L.Ed. 181; Hawley v. James , 7 Paige Ch. 213, 32 ... Am. Dec. 623; Proctor v. Ferebee , 1 Ired. Eq ... 143." See also Cooley v. Scarlett , 38 Ill. 316; ... Westlake, Private International Law, 64. Proctor v ... ...
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Fall v. Fall
...No. 2,446; Massie v. Watts, 6 Cranch (U. S.) 148, 3 L. Ed. 181;Hawley v. James, 7 Paige (N. Y.) 213, 32 Am. Dec. 623;Proctor v. Ferebee, 36 N. C. 146, 36 Am. Dec. 34.” See, also, Cooley v. Scarlett, 38 Ill. 316, 87 Am. Dec. 298; Westlake's Private International Law, 64; Proctor v. Proctor, ......