Opinion
(December Term, 1826.)
1. In a partition under the act of 1787 a charge of money upon the more valuable dividends for equality of partition is a legal charge upon the land, and follows it into the hands of a purchaser for valuable consideration without notice.
2. Money thus charged is realty as much as the land for which it is the substitute; and where it was allotted to the share of a feme covert, and the husband had taken a bond and given a receipt for it: Held, that the husband and wife could recover the amount for her use.
From HALIFAX. The bill charged that the plaintiff Susan was entitled to one-eighth of a tract of land in Northampton, as tenant in common in fee simple with seven other persons; that a petition for partition thereof was filed in Northampton County Court, and after proper proceedings had, a partition was returned, whereby lot No. 5 was (24) assigned to the plaintiffs, in severalty, valued at $5,500; that the value of each share was $6,547.62 1/2; that for equality of partition the sum of $1,047.62 1/2, was added to the share drawn by the plaintiffs, and was charged upon lot No. 7 in the partition, which was drawn by one Marmaduke N. Jeffreys; that Jeffreys had never paid the said sum of $1,047.62 1/2, but was utterly insolvent, and had sold his share to the defendant Peyton R. Tunstall, who had, at the time of his purchase, notice of the charge thereon in favor of the plaintiffs. The bill prayed general relief, and also specialty that the land drawn by Jeffreys, and conveyed by him to the defendant, might be sold by order of the court for the purpose of paying the sum of money due to the plaintiffs for equality of partition.
Gaston and Hogg for appellant.
Badger for plaintiffs.
The defendant, by his answer, admitted the partition and charge as set forth in the bill, and that he had notice of the charge upon the lot drawn by Jeffreys at the time of the partition; but he stated that the purchased that lot of Jeffreys on 22 September, 1817; that the partition was made in December, 1814, and he supposed that Jeffreys was obliged, at the time of the partition, either to pay or secure the sum charged upon it, and that it had accordingly been paid or secured. He therefore denied that he had any notice of the claim of the plaintiffs at the time of his purchase, and insisted that he was a purchaser for a valuable consideration. He also averred that the plaintiff Robert well knew of the negotiation for his purchase from Jeffreys, from its commencement to its close, and fraudulently or negligently concealed his claim upon the land; that Jeffreys continued solvent until December, 1819, and that the claim of the plaintiffs as now urged was not asserted until June, 1820; and that had he received earlier notice that his land was (25) held subject to the plaintiff's claim, he might have paid it and procured and indemnity from Jeffreys. The defendant also charged that the plaintiff Robert had in November, 1819, settled with Jeffreys for this claim, had taken the negotiable security of Jeffreys for the amount thereof and given a receipt therefor, and thereby had elected to consider it as a personal demand upon Jeffreys. The defendant therefore insisted that the plaintiffs were barred of all equity, either by the fraudulent concealment of their claim, by their laches in not asserting it, whereby the defendant was deprived of all opportunity of procuring a counter security, or by their election to consider the amount as a personal demand against Jeffreys.
The plaintiffs, by an amendment, admitted that the plaintiff Robert had taken the bond of Jeffreys, as set forth in the answer, but averred that he had done so only in the hope of receiving satisfaction from Jeffreys, in which he had been disappointed, and denied that he had received payment of said bond either from Jeffreys or by negotiating it.
There was evidence taken on both sides, but it did not materially vary the facts as presented by the bill and answer, and a recapitulation of it is not deemed necessary to the elucidation of the case.
At the hearing, DONNELL, J., on the Fall Circuit of 1825, decided that the defendant had notice of the charge, and decreed that he should pay the sum of $1,047.62 1/2, charged upon lot No. 7, with interest thereon, into the master's office, for the use of the plaintiff Susan, in such manner as the court might direct, and that each party should pay their own costs. From which decree the defendant appealed. The case (26) was argued at June Term, 1826.
In the reports of Equity Cases, whenever the manner in which they are brought up is not mentioned, the reader will consider that they were removed under the act of 1818, sec. 5.
The act of 1787 (ch. 274) authorizes the county court to make division of the estates of intestates, and the commissioners appointed by the court for that purpose are empowered to charge the more valuable dividend or dividends with such sum or sums as they shall judge necessary to be paid to the dividend or dividends of inferior value in order to make an equal division.
I think the lands on which such sums are charged are not only securities for the moneys so charged, but are themselves the debtors. This appears to be just and fit in a case where partition is made of lands between persons possessed of no other property. The law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or a sufficient security for it.
The act above spoken of directs "the commissioners to make a return of their proceedings and appropriations, etc., to the court by which they were appointed, which return and appropriation shall be certified to the clerk and enrolled in his office, and registered in the office of the county where such land, etc., respectively lie; and such return and appropriations shall be binding among the claimants, their heirs," etc.
This act also directs the money so charged to be paid in twelve months after such return made.
A subsequent act, passed in 1801 (ch. 588), gives further time to minors; but the validity of the appropriations made by the commissioners does not depend upon the payment or nonpayment of the moneys charged upon the larger dividends.
The defendant, in his answer, admits that at the time he made the purchase he knew that the charge on the land once existed, but he believed that it had been paid or settled. Whether he had express knowledge of that fact or not, I think is immaterial, for the debt was a legal charge upon the land, and the fact of its existence was so (29) blended and interwoven with the title to the land that he could not inquire into and examine the title without perceiving it, for Jeffreys claimed directly under the partition and appropriation made by the commissioners.
It is argued also for the defendant that this debt was discharged by the receipt given by Wynne, in 1819, in which it is stated, in substance, that the account is settled and a bond taken for it.
This was no discharge of the debt, which is a legal and express charge upon the land; but what is conclusive is that the receipt was subsequent to the purchase by the defendant; besides, he was not a party to it.
In point of fact, I think it a hard case upon the defendant. Wynne has certainly been guilty of neglect; but Mrs. Wynne is the meritorious claimant, and the debt, when recovered, ought to be secured for her benefit.
HENDERSON, J., dissented, but filed no opinion.
The following is the substance of the decree in this cause:
Declare that the sum of $1,047.62 1/2, allotted to the complainant Susan, was an express charge upon the land allotted to Marmaduke N. Jeffreys, to which the said Susan was entitled, in the same manner, as to the real estate, in lieu of which the same was charged, and that her right thereto was not affected by the receipt given by the plaintiff Robert. Declare, further, that the defendant purchased with notice of the right of Susan, and that the lands passed subject to the charge of the said sum, and continue liable therefor. Declare that the defendant pay into the office of the master the said sum, with interest from 1 April, 1816, and the costs of this suit, and, in case of default, that the master sell, etc. Declare, also, that the defendant, as well as William Doggett and William Wooten, sureties for the appeal to this Court, are personally liable to the plaintiffs for the payment of the money above (30) mentioned, and the plaintiffs may, at their election, have execution against the defendant and his sureties, or rely upon a sale of the land, etc. And let the said sum be held subject to be secured to the plaintiff Susan, according to the directions of this Court, and retain the cause for such directions.
Cited: Jones v. Sherrard, 22 N.C. 181; Sutton v. Edwards, 40 N.C. 427; Ruffin v. Cox, 71 N.C. 256; Pullen v. Mining Co., ibid., 565; Halso v. Cole, 82 N.C. 163; Meyers v. Rice, 107 N.C. 28; In re Walker, ibid., 344.