Aston v. Galloway, 38 N.C. 126, 3 Ired. Eq. 126 (1843)

Dec. 1843 · Supreme Court of North Carolina

38 N.C. 126, 3 Ired. Eq. 126

GEORGE ASTON vs. THOMAS S. GALLOWAY & AL.

A testator devised his land to his wife for life, and then devised as follows : “ T give and devise the land, after the death of my said wife, to my nephew J. A. and his heirs, he paying to my two other nephews, E. <& G. A., as they respectively arrive at the age .of twenty one years, the sum of £100 each. And should it so happen that the said E. and G. should be of age, before my nephew J. A. be in the possession of the said plantation and land, in that case, he, the said J. A., is not bound to pay the aforesaid sums of money finally, until two years'from the day of taking possession.” Held that these legacies were a charge upon the land.

Held further, that, where this land had been sold to one, who had notice of the lien, and he had afterwards sold it to another who had no notice, whatever remedy there might be against the latter, the court would first decree the legacies to be paid by the first-.vendee, who had the notice.

The filing of a bill in Equity is the commencement of the suit, and the time, within which presumption of satisfaction is to arise, must be_reckoned back from that period.

The case of McLin v McNamara, 2 Dev. & Bat. Eq. 82, cited and approved.

'[’his cause was removed to the Supreme Court from the Court of Equity of Rockingham County, at Fall Term, 1842.

This bill, which was filed on the 2d of May, 1835, was brought to recover a legacy of £100 and interest, which it alleges that one William Aston bequeathed to the plaintiff and charged on a tract of land devised in the said will to John Aston. In the year 1795, William Aston made . . 1 ’ will and in it he gave to his wile Rebecca Aston a large legacy of personal property, and in the same clause he ed to say ; “ I also lend to her the use of the rest of my estate, of what nature or kind soever, during her life.” The testator, in a subsequent part of his will, devises as follows: “ I give and devise the land and plantation, cvhereon I now live, after the death of my said wife, to my nephew John Aston and his heirs, he paying to my two other nephews (his brothers) Edwin and George Aston, as they respectively arrive at the age of twenty one years, the sum of £100 each. And should it so happen, that the said Edwin and George should be of age, before my nephew John should be in possession of the said plantation and land, in that case he, the said John, is not bound to pay the aforesaid sums money finally, under two years from the day of taking possession.” John Aston conveyed his estate in remainder in the land to Marmaduke Williams; and has since died insolvent. Marmaduke Williams conveyed tO' Robert Williams and Robert Williams, on the 10th day of October, 1S04, by deed of bargain and sale, conveyed the said land to Robert Galloway ; the said deed reciting that it was the land willed by William'Aston to John Aston. On the death of Rebecca, the tenant for life, which happened between the 5th and 15th days of May in the year 1820, Robert Galloway took possession of the said land, ánd continued in possession it, up to his death in the year 1832. His executors thereafter, on the 27th of February, 1834, under a power in the will of their testator, sold the said land to William C. Wisdom, who then took possession and is now in possession of it. The bill was filed against the executors of Robert Galloway and against William O. Wisdom; and', after stating that the legacy as the plaintiff was advised, was a charge on the land, averred that Robert Galloway, at the time of his purchase, had express notice, and William C. Wisdom, at the time his purchase, notice in law, of this lien. The bill then prayed that the defendants might be decreed to pay him amount of his said legacy and interest.

The defendants in their answers admitted all the material facts charged in the plaintiff’s bill, except the notice of the the lien, if there was a lien, and insisted also that there was no ]¡eni They also relied upon the presumption of satisfaction from the lapse of time.

There was a replication to the answer. Depositions taken_in the cause, proved that Robert Galloway, at the time oí his purchase, had express notice of the lien and had subsequently paid the other legatee Edwin Aston. It was admitted that William C. Wisdom had no actual notice. It was also proved that Rebecca, the tenant for life, died between the 5th and 15th of May, 1820. The cause was then set for hearing upon the bill, answers and proofs, and sent to the Supreme Court.

Graham for the plaintiff

Badger for the defendants.

Daniel. J.

First; was the £100 given to the plaintiff, as is stated in the case, a charge on the land ? Wre think it was an equitable charge, that is, that in this Court the land is to be regarded as a security for it. In the cose of Abrams v Windup, 3 Russ. R. 35, a testator devised lands to Joseph Bulmer, for paying his son Thomas Bulmer £50, When of the age of twenty-one years. The Master ot the Rolls was of opinion, that this was a devise of the fee to Joseph Bulmer, charged with the payment of the £50 to his son. In Miles v Leigh, 1 Atk. 573, testator devised lands to his wife for life, remainder to his son R. in fee; and he gave to A. a legacy of £150 to be paid in twelve months after his son R. should come to enjoy the premises. The legacy to A. was held a charge, and it was decreed with interest from the death of testator’s wife, against R.’s son and heir. In Ladd v Carter, Prec. Chan. 27, a devise of .lands to A. for life, remainder to such child or children as should be living at his death and to their heirs, A. paying £40 to R. This was a charge, not only on A.’s estate for life, but also on the remainder. In the case now before us, the words Immediately following the devise to John Aston ave, “ paying to my two nephews £100 each, at their ages twenty-one years: But if it shouLd so happen, that they should be of age before John shall be in possession of the said plantation and land, in that case he is not bound to pay under two years from the day of his taking possession.” It seems to us, that the £100 was not intended by the testator, to be a personal debt on the devisee in remainder only ; but it was to arise out of the land, after the devisee should get into the possession of the same, and he be able to make it out of the rents and profits — therefore it was a charge upon the land. Secondly, the executors of Galloway rely on the presumption of payment, or abandonment of the plaintiff’s equitable interest in this legacy. Under the statute, (Rev. Stat. c. 65, s. 14) before such a presumption can arise, thirteen years must have run between the time the plaintiff could have filed his bill, and the time he actually did file it. The £100 legacy was not payable, until after the expiration of two years, from the time the remainderman John Aston had a right to enter into the possession, to wit, two years after the death of the tenant for life. The thirteen years had not run by the space of three days, when this bill was filed, taking the death of the widow to have been at the earliest day mentioned in the evideuce. We have heretofore said that the filing-of the bill is the commencement of the suit. 2 Dev. & Bat. 82. The act of Assembly therefore does not bar the plaintiff.

Thirdly; the defendant Wisdom says that he isa purchaser for the full value of the fee-simple in possession, and also that he purchased without notice of the plaintiff’s demand ; and, therefore, that he is not liable at all, or, at any rate, that Galloway is liable before him. As the opinion of the court is with him upon the latter ground, it will not be necessary, at least for the present, to express any upon the first point, inasmuch as the plaintiff is satisfied with a decree against Galloway in the first instance, as there is no doubt of the solvency of his estate. Wisdom purchased without any actual notice, and, as appears both from his answer and that of Galloway, contracted for the unencumbered fee, reserving nothing, but paying the whole purchase money to Galloway’s executors, who still have it. They have therefore the fund, which ought to satisfy the plaintiff’s demand-, and there must be a decree against them for the plaintiff’s legacy of £200, with interest thereon from the filing of the bill. The interest cannot be carried farther back, because it appears the plaintiff absconded from this State and removed into parts unknown in the Western States before the death of Mrs. Aston. Galloway might not have known that his brother John, the devisee of the land, had not paid him, or that the plaintiff did not look to him. The legacy to the other brother he paid on demand. It was the duty of the plaintiff also to have requested payment, or, at least, given Galloway notice where he might be found. But for the principal and interest from the filing of the bill and for the plaintiff’s costs, Galloway’s estate is liable. Between the plaintiff and Wisdom neither party is entitled to costs up to this time; but the bill will be retained as against Wisdom, until it be ascertained, whether payment can be had from Galloway.

Per Curiam, Decree accordingly.