Opinion
June Term, 1806.
The purchaser of a tract of land dies before he pays the purchase money or receives a title, and by his will devises the land to aliens, who are his heirs at law, his representative having been compelled to pay the purchase money, those who take the land after his death take it subject to this charge, and are bound to reimburse the purchase money to his representatives. And the land being sold by an order of the County Court upon the application of the guardian, for the purpose of discharging demands against his ward's estate, the ward being made a party defendant to the bill filed for the purpose of having the purchase money reimbursed, demurred to the bill. The demurrer overruled.
BENJAMIN EDWARDS, guardian of William E. Webb, an infant under the age of twenty-one years, having notice of (135) debts and demands against the estate of his ward, applied to the County Court of Halifax, wherein his guardianship had been granted, for an order to sell so much of the real estate of his ward as might be sufficient to discharge such debts or demands, and the said court, in consequence of such application, made an order particularly specifying that the said Benjamin might for the purposes aforesaid sell a tract of land belonging to his ward, lying in the county of Halifax and containing by estimation 400 acres. Edwards, in virtue of the premises, and of the act of Assembly in such case made and provided, exposed the said tract of land to public sale on six months' credit; at which sale Richard Kay became the purchaser. Before Kay either paid the purchase money or received a title, to wit, in 1794, he departed this life, having previously made and published his last will and testament in writing, duly executed to pass his real estates, and thereby devised his property, both real and personal, to his sisters, who were his heirs at law, subjects of the King of Great Britain, resident in England and aliens.
From Halifax.
After the death of Kay, Edwards brought suit against Thaddeus Baines, executor of Kay's will, for the purchase money aforesaid, and in Halifax Superior Court obtained judgment for the sum of £ 632 18s. 11d. Thaddeus Baines dying soon afterwards, administration de bonis non, with the will annexed of Kay, was granted to Sterling Marshall, who in 1799 paid to Edwards the amount of the said judgment, together with the sum of £ 39 18s. 8d. costs of suit. Webb, the ward, having afterwards arrived at the age of twenty-one years, and Edwards, his guardian, having died, the administrator of Edwards some time in the year 1802 came to a settlement with Webb concerning the guardianship aforesaid, and in that settlement was included and fully accounted for the amount of the judgment aforesaid received by Edwards.
Kay was in the possession of the said tract of land at (136) the time of his death. There was no actual occupancy of it afterwards until 1803, when Webb entered upon and became possessed of it. Marshall, the administrator de bonis non, etc., having died, administration with the will annexed of all and singular the goods and chattels, rights and credits, which were of the said Richard Kay, unadministered by the aforesaid Thaddeus Baines and Sterling Marshall, was committed by Halifax County Court to John Eaton, who, being advised that it was doubtful whether the real title to the said tract of land remained in Webb, or had escheated and vested in the Trustees of the University of North Carolina, or belonged to the State; and also advised that whoever became entitled to it on the death of Kay took it subject to the burthen of paying the purchase money aforesaid; and as the estate which he represented had been compelled to pay the judgment for the said purchase money and costs of suit, that the person or persons entitled to the land ought to reimburse to him the said judgment and costs with the interest, or permit the said tract of land to be sold for that purpose in the first instance, filed a bill in the Court of Equity for Halifax District against the said William E. Webb and the Trustees of the University of North Carolina, and therein prayed that the Attorney-General of the State, being attended with a copy of the bill, might appear and put in his answer thereto on the part of the State; that the person or persons entitled to the land might be decreed to pay to him the amount of the aforesaid judgment and costs with interest, or that the land might be decreed to be sold in the first instance for this purpose; and that all proper parties might be decreed to join in a conveyance to the purchaser under the said sale.
To this bill Webb demurred, and the complainant joined in demurrer. Seawell, the Attorney-General, put in an answer on the part of the State, stating that he had no knowledge of any of the facts set forth by complainant, and prayed (137) that the interest of the State might be protected, by complainant's being put to full proof of his case, etc. The case was sent to this Court upon the question whether the demurrer filed by Webb ought to be allowed.
Let the demurrer be overruled.