Den on Demise of Williamson v. James, 32 N.C. 162, 10 Ired. 162 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 162, 10 Ired. 162

DEN ON DEMISE OF WILLIAM WILLIAMSON vs. JAMES JAMES.

An execution does not bind trust estates from the tesie, but from the time it is “sued.”

The case of Hall v. Harris, 3 Ire. Eq. 289, cited and approved

Appeal from the Superior Court of Law of Catawba County, at the FaliTerm 1848, his Honor Judge Moore presiding.

On the trial of this action of ejectment, the following case appeared. One Lockenore, in May 1845, conveyed in fee the premises in dispute to one E Hetrick, in trust to sell and to pay a debt, to which one Philip Hetrick and one Sigthan were his sureties. On the 22nd of October, 1845.E* Hetrick, Philip H-etrick, and the defendant, came to an agreement, by which the defendant was to pay the trust debt, and to pay Lockenore $147 besides for his in* terest. Accordingly the defendant gave his note to Philip Hetrick for the amount of the trust debt, and an endorse-, ment was made on the deed of trust in these words: ‘•Oct 22nd, 1845, Rec’d of James James his note for $153 in full satisfaction of the within deed.

E. Hetrick,

Philip Hetrick.”

On the same day, Lockenore executed to the defendant a deed for the land. At the Fall Term of Catawba Court, which began on the 20th day of October, 1845, a judgment was taken against Lockenore, execution was afterwards issued, and the land was sold by the sherifF to the lessor of the plaintiff in March 1S46. In September 1846, E. Hetrick, at the instance of the defendant, sold the land as trustee and executed a deed to a son of the defendant.

The plaintiff’s counsel moved the Court to charge, 1st. That as both the plaintiff and the defendant claimed under Lockenore, the defendant was estopped by the deed from Lockenore, 22d October, 1845, from setting up title derived from him in any other way. And as the teste of the execution, under which he claimed, was prior to the date of the deed from Lockenore to the defendant, the plaintiff was entitled to recover; 2dly, that the endorsement on the deed of trust was a satisfaction of the trust debt, and left a resulting trust in Lockenore, subject to execution, and the legal estate passed to the lessor of the plaintiff by the sheriff’s deed.

His Honor was of the opinion with the plaintiff, upon the first point. On the second point he charged, that, if the effect of the endorsement upon the deed of trust was to extinguish the trust debt, then Lockenore had a pure trust, liable to execution, and the plaintiff was entitled to recover. But, if the intention ofthe parties was not to ex« tinguish the trust debt, but to transfer it to the defendant, then Lockenore had not such a trust as was liable to execution, and the defendant was entitled to a verdict. The jury found a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

Landers and Thompson, for the plaintiff.

Avery and Bynum, for the defendant.

Pearson, J.

The plaintiff was not entitled to recover, although wc do not concur in the reasoning of the Judge, nor in the view he took of the case. Whether the endorsement on the deed of trust had the effect of extinguishing the trust debt, or of assigning it to the defendant, we think immaterial. It is certain, the legal title did not pass, but remained in E. Hetrick, the trustee. It is also certain that the trust estate of Lockenore did pass by his deed to the defendant on the 22nd of October, which was on Wednesday of the term, when the judgment, under which the lessor claims, was entered. The execution issued after the expiration of the term, and, at the time it issued, Lockenore had no trust estate, having passed it to the defendant by the deed of the 22d of October ; so that the lessees took nothing by the sheriff’s sale. An execution does not bind trust estates from the teste, but from the time it is sued. Hall v. Harris, 3 Ire. Eq. 289. This does not seem to have occurred to the learned Judge or the counsel. It decides the case.

Per Curiam

Judgment affirmed.