Opinion · Supreme Court of North Carolina
Hinsdale v. . Thornton
Hinsdale v. . Thornton, 75 N.C. 381 (N.C. 1876)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1876-06-05
- Topic
- general
Pearson, C. J. We have given to the cases relied on in the petition a reconsideration, for we had considered them in making the decision, and did not deem any one of them so relevant as to call for special notice in the opinion. The petition sets out, as a matter of grievance, that the case of Phillips v. Thompson, 73 N.
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UpLaw has not yet analyzed Hinsdale v. . Thornton. The absence of a flag is not a finding that it is good law.
- Cited by
- 10 opinions
HINSDALEv. THORNTON,75 N.C. 381(1876)
JOHN.W. HINSDALE v. A. G. THORNTON.
Supreme Court of North Carolina
June Term, 1876.
1. When one buys land and the contract complies with the statute and is put in writing, he acquires anestatein equity, and the vendor holds the legal estate in trust for himself to secure the payment of the purchase money, and then in trust for the vendee. But, although the vendee acquires anestatein equity, his equitable estateis nota trust subject to sale underfi. fa. until the trust in favor of the vendor is satisfied by payment of the purchase money in full, when it becomes anunmixedtrust estate.
2. Arightin equity to convert the holder of the legal estate into a trustee and call for a conveyance is not such atrust estateas can be sold under afi. fa.
The errors assigned in the petition, alleged as a cause of rehearing, are stated in the opinion of Chief Justice PEARSON.
The petition sets out, as a matter of grievance, thatPhillips v.Thompson,73 N.C. 543, "though it conflicts with the opinion,is notnoticed."This count sets out as a matter of grievance, that the gentlemen of the bar, who certify, upon their professional honor, an opinion that there is error, did not advert to the fact thatthe decisionin that case was that the deed conveyed a fee-simple and needed no reform. The remarks of Justice SETTLE, not necessary to the decision — or, rather, outside of the case — cannot with candor be called adecision. The petition to which they have given their certificate uses that word instead of the wordsobiter dictum. The same may be said of the other cases referred to. The decisions affirm that certain interests and rights in equity are not the subjects of sale under execution. The opinions go into long discussions anddicta, which surely this Court is not bound to notice by any special reference, or discussion in respect thereto, in its opinion.
I endeavored, by the opinion in this case, to point out the distinction between estate in equity and a mererightin equity. It seems I was not fortunate enough to make myself understood, or else the party interested was not open to conviction, and relied on general expressions dropped by judges in the discussion of cases, without having their attention called to the distinction adverted to.
Where one buys land and the contract complies with the statute, and is put in writing, he acquires anestatein equity, and the vendor (383) holds the legal estate in trust for himself to secure payment of the purchase money, and then in trust for the vendee. But, although the vendee acquires anestatein equity, it is decided that his equitable estate is not a trust subject to sale underfi. fa. until the trust in favor of the vendor is satisfied by payment of the purchase money in full, when it becomes anunmixedtrust estate, to use the words of the cases.
That a right in equity to convert one into a trustee, on the ground of "fraud, accident or mistake," is the subject of the salefi. fa., is a proposition which has no reason or authority to support it. Certainly the cases cited in the petition to rehear do not have that effect.
When one has estate in equity, viz., atrust estate, which enables himPage 277to call for the legal title without further condition, save the proof of the facts which establish his estate, this trust estate is made the subject of sale underfi. fa. But where one has only aright in equityto convert the holder of the legal estate into a trustee, and call for a conveyance, the idea that this is atrust estate, subject to sale underfi. fa., is new to us. True, his right to call for the legal estate is not subject to any further condition, save the proof of the facts alleged in support of his right; but there is notrust estateuntil the decree declares the facts and the Court declares its opinion to be that the one party shall be converted into a trustee for the other. It follows that the party has no estate subject to execution sale until the decree has vested an equitable estate in him.
One is entitled in equity to convert another into a trustee, on the ground of fraud, accident or mistake. Can such a right be sold under execution, on the ground that the one party will be decreed, without condition (other than the proof of the allegations necessary to make out his right), to convey the title? Surely not.
A is instructed by B to buy a tract of land for him, and is furnished with the money. A takes the deed for the land in (384) his own name. B is entitled to a decree, without conditions, positively and peremptorily, for a conveyance. Is this right of B subject to sale under execution?
A guardian buys land with the money of his ward — is the right of the ward to follow the fund, subject to execution sale, so that the purchaser at sheriff's sale acquires title to the land?
A avers that by a certain deed B intended to confer on him a fee-simple estate, but that, by reason of accident or mistake, or the ignorance of the draughtsman, only a life estate passed, is the right of A to have the deed reformed, subject to execution sale, so that the purchaser at sheriff's sale acquires, by the deed of the sheriff, title to the land? These questions give their own answers. The many inconveniences, frauds and impositions that may grow out of the sale of such rights underfi. fa. by a latitudinous construction of the act subjecting trusts to sale under execution, confirms us in the conclusion that the courts, in putting a strict construction upon the act subjecting trust estates and equities of redemption to sale under execution, because in derogation and in excess of the common law rights of debtors, are fully sustained by the principles of the law.
PER CURIAM. Petition dismissed.Cited: Love v. Smathers,82 N.C. 372;Everett v. Raby,104 N.C. 480;Barnes v. McCullers,108 N.C. 52;Wilson v. Deweese,114 N.C. 656;Gorrell v. Alspaugh,120 N.C. 367;May v. Getty,140 N.C. 319.Page 278