Tomlinson v. Blackburn

• Decision Date: 30 June 1843
• Citation: 37 N.C. 509,2 Ired.Eq. 509
• Court: North Carolina Supreme Court
• Parties: ALFRED W. TOMLINSON v. ABSALOM B. BLACKBURN et al.

2 Ired.Eq. 509

37 N.C. 509

ALFRED W. TOMLINSON

v.ABSALOM B. BLACKBURN et al.

Supreme Court of North Carolina.

June Term, 1843.

A man, who buys property at an execution sale, buys it only subject to the equitable claims then existing on it.

Where A. had contracted by covenant under seal to buy a tract of land in fee from B. in which B. had only a life-estate at the utmost, his wife being entitled to the fee; and under an execution C. bought all B's interest before he and his wife conveyed to A.; Held that A., although he had given notice to C. of his contract with B., could not recover the land from C. without paying him at least the value of B's. life estate, although A. after such sale by execution had paid B. all he had contracted to pay.

The cases of Dudley v Cole, 1 Dev. & Bat. Eq. 429; Freeman v Hill, 1 Dev. & Bat. Eq. 389, and Lynch v Gibson, N. C. Term Rep. 244, cited and approved.

This was an appeal from an interlocutory order of the Court of Equity of Iredell County, at Fall Term, 1842, his Honor Judge NASH presiding, refusing the motion to dissolve the injunction, which theretofore had been obtained in the case, and directing the injunction to stand over until the final hearing of the cause.

The facts disclosed by the bill and answers are stated in the opinion delivered in this court.

Caldwell for the plaintiff .

J. H. Bryan and Boyden for the defendants .

GASTON, J.

The substance of the plaintiff's bill is, that on the 4th of January 1841, he contracted with one Thomas J. Lazenby for the purchase of a tract of land, whereof the said Lazenby's wife, by whom the said Thomas had issue, was seized in fee, that thereupon Lazenby executed to him a bond in the penal sum of $1050, with condition to make a good and lawful title for the land as early as the same could be done, and he executed unto the said Lazenby his bond for the sum of $375, payable in good negotiable notes, and also another bond for $150, payable in a four horse wagon, amounting together to $525, the stipulated price of the land. The plaintiff further states, that on the 17th of February following a deed was executed in the name of Lazenby and wife, but which, because of some error or informality in the commission for taking her examination and in the return the commission, operated in law as the deed of Lazenby only, whereby the said Lazenby and wife were declared to bargain and sell the said land to the plaintiff and his heirs forever, and thereupon the plaintiff entered into the possession thereof. The bill then states, that at the February Term 1841 of Iredell County Court, which was before the execution of the said conveyance, a judgment was obtained against said Lazenby; that an execution tested of that term issued to the sheriff and was by him levied upon said land; that a sale was made by the sheriff, notwithstanding the plaintiff gave notice of his equitable interest in the said land, that the defendants bought the land at said sale, and one of them, Blackburn, hath taken a conveyance from the sheriff and has since brought an action of ejectment to turn the plaintiff out of possession. The bill avers, that the plaintiff, believing himself to be unquestionably the owner in equity of the land aforesaid, and supposing himself bound by the contract with Lazenby to pay the amount of his bonds to Lazenby, hath, since the sale as aforesaid by the sheriff, paid up the whole thereof, except about the sum of $25, and the deed previously executed has been so acknowledged by Lazenby's wife as to render the...