At Spring Term, 1858, of PERSON, an ex parte petition was filed by the plaintiff N. H. Baird, the defendant, Henry R. Baird, and others, devisees and legatees of William Baird (who died in the year 1857), praying for a valuation by commissioners of certain lands conveyed by the testator to the petitioners by deeds of gift in his lifetime, and for a partition of slaves bequeathed in his will in accordance with the following provision: "I direct that all the residue of my estate be equally divided between my sons, John, etc. (naming them), with the understanding that each is to account for what I have advanced to each in my lifetime, so as to make all as nearly equal as possible. I have been negligent in keeping accounts of advancements, and I trust they will do justice among themselves," etc. Commissioners were appointed according to the prayer of the petition, and at (318) Fall Term, 1859, they made their report, stating the valuation of the several tracts of land, and charging the more valuable with the *Page 212 payment of certain sums to render the shares equal. Exceptions to the report were filed by Henry R. Baird, and it was set aside and other commissioners were appointed. They made their report, which was of a similar character to the other, to a subsequent term, and exceptions to it were filed by John Baird and Nathaniel H. Baird. The cause was continued to Spring Term, 1867, when the exceptions were withdrawn and the report confirmed. The decree confirming the report, in accordance therewith, ordered Henry R. Baird (one of the defendants in this cause) to pay to Nathaniel H. Baird (the plaintiff) the sum of $1,940.84 1/3, to make the share of the latter equal, etc.
The present bill recites these proceedings and states that of 1,788 acres conveyed to the defendant H. R. Baird by his father, William Baird, by deed of gift in his lifetime, H. R. Baird had sold portions before the death of his father and also that after his death (by deed dated....), he conveyed to the defendant John Baird 200 acres, and (by deed of trust, dated 26 September, 1866), to the defendant Larkin Brooks 600 acres upon trust to secure the payment of certain debts due to Josephus Younger and others, who were made defendants. It was also alleged that the cestui quetrust sued out attachments against the defendant H. R. Baird in the year 1866, but prior to the date of the deed to Larkin Brooks, and had them levied on a portion of the 1,788acre tract, and that at September Term, 1866, of the County Court of Person judgments therein were rendered against H. R. Baird, but that no sale had been made.
The prayer of the bill is that the defendant be enjoined from selling the land conveyed to him under the deed in trust, that the cestuis (319) que trust may be enjoined from levying their executions upon and selling any part of the original tract of H. R. Baird; that the said tract, or so much thereof as might be required, should be sold under an order of the court, and the proceeds applied to the payment of the sum charged by the former decree in favor of the plaintiff against the defendant H. R. Baird; and for further relief. After a careful examination of this case we are unable to perceive any principle, upon which the bill can be sustained. It is said by the counsel for the plaintiff to be a supplemental bill, filed for the purpose of having a former decree executed. With that view is there the slightest necessity for it? We think not. The proceedings in the two causes show that by a decree made in the first cause, at the Spring Term, 1867, of the Court of Equity for PERSON, a certain *Page 213 sum of money was charged upon a certain tract of land belonging to the defendant Henry R. Baird in favor of another tract belonging to the plaintiff, and was ordered to be paid by the former to the latter. While the suit was pending, a part of the land of Henry R. Baird was by him assigned to some of the other defendants, and the present suit to execute the decree was brought to the next succeeding term of the court. It seems to be based upon the supposition that the lands of the defendant Henry R. Baird, in the hands of his assignees, could not be reached by any process of the court, without a supplemental bill to bring them in as parties. In that we are of opinion that it erred. The alleged lien was upon the land, and as the assignees acquired their title to it by purchase while the former suit was going on, the decree which was finally made in it could be enforced at once without making them parties. The plaintiff had the right to have fruits of his (322) decree soon after it was rendered, by any means which the law allowed to make it most effectual. If it were necessary to proceed against the land itself, which was charged with the payment of the money, the land might be taken and sold no matter into whose hands it had come while the suit was pending. As to the effect of a lis pendens, see Adams Equity, 157, and the cases referred to in note 2 of the American edition.
It having been thus shown that the present suit was entirely unnecessary to give to the plaintiff the full effect of the former decree, it follows that the bill can not be maintained, but must be dismissed. See Rogers v.Holt, ante, 108, and Gee v. Hines, ante, 315.
In coming to the conclusion at which we have arrived, it will be perceived that we have taken it for granted that the plaintiff is right in giving to the decree in the former suit the same effect that it would have had as a decree for partition under the Rev. Code, ch. 82, sec. 1, in which a dividend of greater value is charged with a sum of money in favor of a dividend of inferior value, for equality of partition. It is manifestly unnecessary for us to decide whether it is so or not, for if it be not so, then of course the bill will not lie, because it is based solely upon the correctness of the contrary supposition.
PER CURIAM. Bill dismissed with costs.
Cited: Todd v. Outlaw, 79 N.C. 240; Daniel v. Hodges, 87 N.C. 100;Morgan v. Bostic, 132 N.C. 751; Timber Co. v. Wilson, 151 N.C. 157. *Page 214
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