This action involves a controversy as to the title of the land described in the complaint which the contesting parties respectively claim. By consent it was submitted to the judge, in place of a jury, to ascertain and determine the facts, and his findings are as follows:
One Isaac Simpson owned the tract of 110 acres within whose (374) boundaries are included the land mentioned in the complaint and in the various deeds herein after mentioned, and he, on 13 December, 1858, conveyed the same to Robert Simpson, and Robert Simpson, on 10 September of the succeeding year, reconveyed to his grantor, Isaac.
Objection was made and overruled to the admission of the reconveying deed in evidence, on the ground of an alleged insufficient probate to authorize registration. The probate was in this form:
NORTH CAROLINA — UNION COUNTY.
Be it remembered that on this 4 August, 1884, personally appeared Zylphia Simpson, who, after being duly sworn, deposes and says that she is acquainted with the handwriting of I. L. P. Simpson, a subscribing witness to the foregoing deed, and that his signature to said deed is in his own proper handwriting, and that said witness to said deed is dead, and that William T. Lemmond is also dead. It is therefore adjudged that said deed is sufficiently proven. Let it, with this certificate, be registered. This 4 August, 1884.
GEO. C. McLARTY, C. S.C. *Page 326
The exception was not pressed upon the hearing in this Court, and it is manifestly untenable under the rulings in Barwick v. Wood, 48 N.C. 306, and Davis v. Higgins, 91 N.C. 382, correcting the previous decision inCarrier v. Hampton, 33 N.C. 307.
Isaac Simpson on 12 September, 1859, conveyed the land by mortgage to William T. Lemmond and W. L. Simpson who, by endorsement, had become sureties for him on a note for $312.50, due Robert Simpson on 11 September, 1859, one day after its date, to secure and indemnify them against loss or damage on account of their liabilities as such endorsers, but without any power of sale conferred upon the mortgagees. (375) Upon this note suit was brought by the payee against the principal debtor, the surety, William L. Simpson, and J. Q. Lemmond and E. A. Lemmond, executors of the other surety, William T. Lemmond, who had died since the making of the mortgage, to Fall Term, 1869, of Union Superior Court, the summons having been served on all except the executor last named, and judgment was entered for want of an answer. On this judgment a writ of fieri facias issued against all the defendants, including the executor upon whom no service had been made, on 20 November, 1869, to the sheriff, who proceeded to make a levy and sell fifty acres of land of the said Isaac Simpson for the inconsiderable sum of two dollars and a half to one A. J. Hargett, as is shown in the official return to the writ, and on 4 April, 1870, conveyed the land to him by deed.
Some time in 1870, the precise date not being given, the mortgagee, W. L. Simpson, and J. Q. Lemmond, the surviving executor of the associate mortgagee — William T. Lemmond, the other executor, being dead — united in a deed conveying the land described in the mortgage to W. C. Ogburn, and he, the said Ogburn, and wife then executed their deed for the same to the feme plaintiff, M. L. Simpson, who then was, and for eleven years previous had been, the wife of the plaintiff Robert.
It appears from the testimony of the said Robert, whose evidence reported by the court, as understood, is accepted as proof of the fact testified that the consideration of the last mentioned deed did not come from him, but was paid by his wife, to whom title was made; that he, the witness and plaintiff in the execution, knew nothing of the sale, and gave no directions concerning it, and told W. L. Simpson that Ogburn had settled with him for the $100.00; to make the deed to him and credit that sum on the judgment.
Successive deeds were then exhibited for the premises as follows:
1. A. J. Hargett to H. P. Hargett, dated 1 January, 1871.
(376) 2. H. P. Hargett and wife to W. H. Simpson, dated 27 March, 1872. *Page 327
3. W. H. Simpson to E. A. Simpson, 28 October, 1875, the latter being the husband of the defendant Zylphia and the father of the other defendants who were in possession.
The surviving mortgagee and surety obtained his discharge in bankruptcy on 14 July, 1873, operating on his indebtedness as existing on 2 December, 1872, and the estate of the deceased mortgagee and cosurety, W. T. Lemmond, is insolvent, and will be exhausted in payment of judgments rendered against him in his lifetime.
The other testimony, rather than the facts deduced from it, set out in the findings of the court is not material to the disposition of the appeal and is therefore not repeated.
In our opinion, upon the imperfect statements contained in the case, no estate or, if any, only a moiety passed under the sheriff's sale and deed to A. J. Hargett, the purchaser, and consequently none other was transmitted through the subsequent deeds to E. A. Simpson, under whom the defendants claim.
The legal estate of Isaac Simpson had been divested more than ten years before that sale, and was in the sureties, mortgagees, when it took place; and while one of them, W. L. Simpson, was a defendant in the execution, the land was not levied on or sold as his, but as the property of the principal debtor, Isaac Simpson. The sheriff's return is that he "levied on the landsof the defendant Isaac Simpson, fifty acres, more or less," and such interest only as he had in the premises was the subject matter of the attempted sale and conveyance to the purchaser. If a wide scope be allowed to this official action and the sale be regarded as made of a specific tract of land, described in the return as that of said Isaac, only for the purpose of identification and passing the estate of the defendant W. L. Simpson as mortgagee possessing a moiety thereof, a construction hardly admissible, the effect would be only to convey that legal moiety and not the full title to the purchaser.
The debtor Isaac had only an equity of redemption in the land (377) conveyed for the indemnity of his endorsers which, in legal effect, was to secure the payment of the debt and thereby their discharge. His equity of redemption could not be sold under execution upon a judgment rendered for the mortgage debt, as is decided in Camp v. Coxe, 18 N.C. 52, for reasons clear and convincing.
The plaintiff's title is derived as follows:
1. A mortgage deed executed 12 September, 1859, by Isaac Simpson to William T. Lemmond and W. L. Simpson to secure them on their liability as endorsers of his note.
2. A deed from W. L. Simpson, surviving mortgagee, and J. Q. Lemmond, surviving executor of William T. Lemmond, the other executor having died in 1870, to W. C., Ogburn. *Page 328
3. A deed from said Ogburn and wife to M. L. Simpson, wife of the plaintiff Robert, and his associate in prosecuting the action, to whom she had been married for eleven years prior to the execution of the deed.
4. A copy of the will of the testator, William T. Lemmond, and the minutes of the county court of Union of April Term, 1864, showing the qualification of the executors, one of whom, E. A. Lemmond, was dead at the time of making the deed to Ogburn.
The will is not before us so that we can see that a power to make sale of the land is vested in the executors, but such we must assume to be the fact of the case.
If the power is conferred, it could be exercised by the living executor in cooperation with the other mortgagee, if not at common law, by the express words of the statute, Bat. Rev., ch. 45, sec. 116, reproduced in The Code, sec. 1493.
If the entire legal estate vested in the mortgagees did not pass in the deed of 1870 to W. C. Ogburn, because of the execution sale, interrupted in the manner suggested — in which we are unwilling to concur — at least that moiety did which was in the deceased mortgagee, and in either event the ruling which denies any title to the plaintiffs is erroneous (378) and entitles the plaintiffs to a new trial. It is so adjudged. Let this be certified in order thereto.
Error. Reversed.
Cited: McPeters v. English, 141 N.C. 494.