This is an action brought by plaintiffs against defendant to remove a cloud from the title to certain land and to declare a certain deed from the Bank of Pinehurst, mortgagee, to the defendant Carl Davis, executor of S. G. Garner, deceased, void.
The court below decided that defendant was estopped from claiming title to the land in controversy. In this we can see no error.
In the agreed statement of facts are the following:
(1) On 5 July, 1926, Hugh M. Shields and S. G. Garner made a mortgage to the Bank of Pinehurst, to secure the sum of $3,000, on the land in controversy for borrowed money, each of them being equally responsible for the payment of same.
(2) For a long time prior to 22 April, 1932, Shields and Garner were copartners, owning a mercantile business and certain real estate, including that in controversy, each owning one-half undivided interest in the partnership property.
(3) That during the spring of 1932 the partnership was dissolved by mutual consent and in the division Garner conveyed to Shields the land *5in controversy with full covenants of warranty. By the terms of the dissolution agreement, Shields and Garner were to pay off and discharge the indebtedness to the Bank of Pinehurst — -the mortgage indebtedness being for the benefit of both.
(4) Hugh M. Shields died on 20 February, 1934, and left the land in controversy to his wife, Kate M. Shields, Ethel Kelly, and Annie McDuffie. W. N. McDuffie duly qualified as administrator c. t. a. on 1 March, 1934. Kate M. Shields died on 22 June, 1935, intestate, leaving as her heirs at law and next of kin the plaintiffs Ethel Kelly, Mrs. G. 0. Hunt, and Mrs. Luola Muse. S. G. Garner died on 12 December, 1934, leaving a last will and testament wherein Carl Davis was named executor, and he duly qualified on 19 December, 1934.
(5) Both Shields and Garner before they died made certain payments to the Bank of Pinehurst on its indebtedness secured by mortgage on which both were liable. After the death of Hugh M. Shields and before the death of S. G. Garner, W. N. McDuffie, administrator c. t. a. of Hugh M. Shields, and the defendant C. S. Davis, as agent of S. G. Garner, made one or more payments on said mortgage to the Bank of Pinehurst on or prior to 24 July, 1934, and no other payment was made on said mortgage after that date. The plaintiffs and W. N. McDuffie, administrator c. t. a. of Hugh M. Shields, and the defendant C. S. Davis, executor of the last will and testament of S. G. Garner, were not notified of this sale and had no notice of the foreclosure of the mortgage of the Bank of Pinehurst until about 3 weeks after said mortgage had been foreclosed by sale of said lands on 30 May, 1935.
(6) The land was foreclosed by the Bank of Pinehurst. The Bank of Pinehurst, by W. D. Sabiston, Jr., reported said foreclosure sale as having been made by it 30 May, 1935, under the said mortgage above referred to, and that at said sale Dwight Scotten became the last and highest bidder in the sum of $221.00. After said sale the defendant C. S. Davis, executor, negotiated with the Bank of Pinehurst and Dwight Scotten and caused to be transferred the bid of Dwight Scotten to the defendant as executor as aforesaid on 21 June, 1935, and pursuant to said assignment the Bank of Pinehurst executed and delivered to the said O. S. Davis, executor, deed dated 24 June, 1935, therein conveying to said Davis, executor, the aforesaid lands described in said mortgage deed.
(J) At the time of said sale on 30 May, 1935, the said Shields and Garner were indebted to the said Bank of Pinehurst in the sum of $200.00 and interest and cost of such sale amounting to $221.00. The plaintiffs have tendered to C. S. Davis, executor, one-half of the principal, interest, and cost, and offer to pay into court the said sum in cash.
The deed from S. G. Garner (single) to Hugh M. Shields, dated *618 March, 1932, covering the land in controversy, has this in it: “And the said party of the first part covenants that he is seized of said premises in fee, and has the right to convey the same in fee simple, that the same is free and clear from all encumbrances, and that he will warrant and defend the said title to the same against the lawful claims of all persons whomsoever.”
S. G. Garner owed one-half the debt as between him and Hugh M. Shields. On the record there is no dispute as to this either by Shields or Garner before they died, or by their respective administrator c. t. a. or executor, the defendant.
The land in controversy was worth not less than $2,000. S. G. Garner owed the debt as well as Hugh M. Shields. When he died his estate was liable for the payment. This was recognized by the defendant executor, Garner, who was joint and severally liable on the note secured by mortgage to the Bank of Pinehurst. Then, again, Garner made a covenant with Shields that he would “warrant and defend the said title to the same against the lawful claims of all persons whomsoever.” We think under the facts and circumstances there was such a trust relationship existing that the defendant is estopped to claim title to the land in controversy.
In Speight v. Trust Co., 209 N. C., 563, a wife was surety on the note of her husband and executed a mortgage on her land as security for his debt, and the husband subsequently bought the land at a sale under the mortgage, paid off the debt with his own money, and took title to the land to himself. This Court held that a court of equity will impress on the legal title thus acquired a trust in favor of the wife, quoting at pp. 565-566, from Pomeroy on Equity Jurisprudence, sec. 1044, as follows: “Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title, and where there is no express or implied, written or verbal, declaration of the trust. They arise when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership.” Bechtel v. Bohannon, 198 N. C., 730 (732-3).
We have here a debt which Garner’s estate owed and he and his executor were in duty bound to pay. The total due of $221.00 and interest from 30 May, 1935, without notice to the executor of Shields, or the heirs at law, and contrary to the express warranty in the deed, defendant as executor purchased the land, worth not less than $2,000, and now *7claims same. In good conscience, equity, and justice tbis cannot be done. He bolds tbe legal title as trustee for tbe plaintiffs and is estopped to claim an adverse title against plaintiffs. Tbe judgment provides for tbe payment of one-balf by eacb, wbicb is fair dealing and bonesty — not tbe best policy but tbe only policy in dealings between man and man.
The defendant cites Jones v. Myatt, 153 N. C., 225 (230), where it is said: “It is settled by several decisions of tbis Court that actual partition merely designates the share of the tenant in common and allots it to him in severalty. Harrison v. Ray, 108 N. C., 215; Harrington v. Rawls, 136 N. C., 65; Carson v. Carson, 122 N. C., 645. It does not create or manufacture a title.” Power Co. v. Taylor, 191 N. C., 329; Burroughs v. Womble, 205 N. C., 432 (434); Insurance Co. v. Dial, 209 N. C., 339 (348). These cases are not applicable to the present case. "When Garner made the deed to Shields the Bank of Pineburst bad a lien on the property and Garner, with knowledge that be and Shields were both liable on same, expressly covenanted that be would warrant and defend the title to the same against the lawful claims of all persons whomsoever. In the face of tbis warranty it would be inequitable and unconscionable for bis executor to buy in the land when the Bank of Pineburst sold same. There was a trust relationship, and be is estopped to do this. In Bailey v. Howell, 209 N. C., 712 (715), it is said: “the acquisition of an outstanding adverse title by one of the tenants in common, who is in possession, inures to the benefit of all. And tbis rule applies to tax sales. Tiffany Real Prop., sec. 201. Goralski v. Postuski, 179 Ill., 177, 20 Am. St. Rep., 98.”
In the present case, we think, under all the facts and circumstances, there was such a trust relationship that forbids a hostile attitude. The instant ease is different from Everhart v. Adderton, 175 N. C., 403.
For tbe reasons given, tbe judgment in tbe court below is
Affirmed.