Opinion · Supreme Court of North Carolina
Alston v. . Foster
Alston v. . Foster, 16 N.C. 337 (N.C. 1829)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1829-06-05
- Topic
- general
Henderson, Chief-Justice. — It is unnecessary to examine into the fraud charged upon Euckaby, in affecting the Sheriff’s sale, under which he claims a part of the property. For by it lie certainly acquired no title, be it ever so fair, as the executor of Hill had, before the issuing of the execution under which the sale was made, assented to the legacy to Mill’s widow for life, whom Euckaby afterwards married. The Sheriff therefore was not authorized to sell, the negroes not being the estate of Mill in the hands of the executor. The property therefore remains in the same situation as if there had been no sale, its it is not so very clear, that the .sale was fraudulently procured by Euckaby, he must be allowed the purchase money paid by him. The Clerk and Master will take an account of the hire of the negroes, and the money paid by Euckaby.
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- Cited by
- 2 opinions
ALSTONv. FOSTER,16 N.C. 337(1829)
JOSEPH J. ALSTON, EXECUTOR OF ROBERT HILL, ET AL. v. PETER
FOSTER, ADMINISTRATOR OF JOHN HUCKABY.
Supreme Court of North Carolina
1. Where slaves are given by will for life, with a remainder over, an assent of the executor to the legacy for life is an assent to that in remainder.
2. Where an executor has assented to a specific legacy, and afterwards an execution issues against the goods of the testator in his hands, a purchaser of that specific legacy at a sheriff's sale under that execution acquires no title.
From FRANKLIN. From the pleadings it appeared that one Benjamin Hill died in 1790, having given to his wife, Mary Hill, a life estate in sundry slaves, with a remainder to his children; that the executor of thePage 186husband assented to the legacy to the wife, and put the slaves into her possession, and soon afterwards she intermarried with the defendant's intestate. Upon the death of the widow of the testator, which happened in 1817, the plaintiffs, who are those in remainder, or their representative, by this bill sought a discovery of the names of the slaves and their issue, and a division of them.
The defendant in his answer made the discovery required, and submitted to a division except as to some of the slaves, the ancestor of whom he contended his intestate had purchased in 1792, after his marriage with the widow of Benjamin Hill, at sheriff's sale, under an execution against the goods and chattels of Benjamin Hill in the hands of his executor. The plaintiffs alleged that the defendant's intestate had fraudulently procured this sale to be effected, and by his contrivances had bought in those slaves at an under value. Testimony was taken to this point, but a statement of it is thought to be immaterial.
(338)Badger for plaintiff.Seawell for defendant.
HENDERSON, C. J.
It is unnecessary to examine into the fraud charged upon Huckaby in effecting the sheriff's sale, under which he claims a part of the property; for by it he certainly acquired no title, be it ever so fair, as the executor of Hill had, before the issuing of the execution under which sale was made, assented to the legacy to Hill's widow for life, whom Huckaby afterwards married. The sheriff, therefore, was not authorized to sell, the negroes not being the estate of Hill in the hands of the executor. The property, therefore, remains in the same situation as if there had been no sale. As it is not so very clear that the sale was fraudulently procured by Huckaby, he must be allowed the purchase money paid by him.
The clerk and master will take an account of the hire of the negroes and the money paid by Huckaby.
PER CURIAM. Decree accordingly.Cited: Burnett v. Roberts,15 N.C. 83;Saunders v. Gatlin,21 N.C. 94;Howell v. Howell,38 N.C. 526;Acheson v. McCombs, ibid., 555;Rea v.Rhodes,40 N.C. 157;Edney v. Bryson,47 N.C. 366;Grant v. Hughes,82 N.C. 219;McKay v. Guirkin,102 N.C. 23.Page 187