Opinion
August Term, 1849.
An execution does not bind trust estates from the teste, but from the time it is "sued."
APPEAL from the Superior Court of Law of CATAWBA, at Fall Term, 1848, Moore, J., 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 Sigman were his sureties. On 22 October, 1845, E. Hetrick, Philip Hetrick and the defendant came to an agreement by which the defendant was to pay the trust debt, and to pay Lockenore $147, besides, (163) for his interest. Accordingly, the defendant gave his note to Philip Hetrick for the amount of the trust debt, and an endorsement was made on the deed of trust in these words:
22 October, 1845, received 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 20 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, 1846. 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: (1) That as both the plaintiff and the defendant claimed under Lockenore, the defendant was estopped by the deed from Lockenore, 22 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; (2) 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 of the parties was not to extinguish the trust debt, but to transfer it to the defendant, then Lockenore had not such a (164) 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 plaintiff.
Avery and Bynum for defendant.
The plaintiff was not entitled to recover, although we 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 22 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 22 October, so that the lesses 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, 38 N.C. 289. This does not seem to have occurred to the learned judge or the counsel. It decides the case.
PER CURIAM. Judgment affirmed.
Cited: Grant v. Hughes, 82 N.C. 217.
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