Doe on the demise of Giles v. Palmer, 49 N.C. 386, 4 Jones 386 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 386, 4 Jones 386

Doe on the demise of H. M. GILES v. J. M. PALMER.

A sale of land under, and by virtue of, a judgment and execution, transfers, at law, all the estate, rights and interest, of the defendant, in the execution, even the legal estate which he holds as trustee.

This was an actioN of ejeotmeiít, tried before SauN-dees, J., at the Spring Term, 185T, of Orange Superior Court.

J. M. Palmer made a deed of trust of the property in question to N. J. Palmer, trustee,- dated 21st of March, 1853, to secure various creditors therein mentioned, upon conditions, and provisions which, the plaintiif contended below, were fraudulent and void as against creditors. This property was sold by the trustee, and bought by Henry Lutterloh at a'full price, who conveyed the same to the defendant, as the trustee of his wife.

"While Palmer was thus seized, the property in question was levied upon and sold, by virtue of an execution in favor of Foley and Woodside against him, and the plaintiif purchased it at auction, and took the sheriff’s deed for the same.

There were various important questions growing out-of the validity of the instrument, but the Court perceiving that there was error in the charge of his Honor, upon the general right of the plaintiff to recover, independently of these questions, therefore, declined to hear them discussed.

Judgment below was rendered proforma for the defendant, on the case agreed. Plaintiff appealed.

Bailey and Bowie, for plaintiff.

Graham, for defendant.

Nash, C. J.

The defence offered in this action, cannot avail the defendant here. The defendant holds the land in question as trustee for his wife 5 as such the legal title is in him. The lessor of the plaintiff is the purchaser of the land at a sheriff’s sale, under an execution against the defendant. A purchaser at a sheriff’s sale succeeds to all the rights of the defendant in the execution ; that is, acquires the interest the latter had, whatever that may be, in the state it was in at the time the execution was levied. Rutherford v. Green, 2 Ire. Eq. 121. The defendant, in the execution, cannot deny the purchaser’s right to stand in his shoes. Should the plaintiff, in this case, attempt to deprive the trustee of the possession of the premises, the remedy of the oestui que tn'ust will be in a Court of Equity.

There is error in the judgment below, and, by consent of the defendant, judgment is rendered for the plaintiff.

Pee CueiaM. Judgment reversed.