This case Avas before the Court a year ago, and is reported as Brinkley v. Brinkley, 128 N. C., 503, and a full statement of the facts will be found there. But, in that case, the effect of an innocent purchaser for a full price and Avithout notice of the contract of the plaintiff Avith IV. II. Brinkley from one of the grantees of the said J. H. Brinkley Avas not considered. The deed the Court declared to be fraudulent and void as to the plaintiff was made to the five children of the said J. H. Brinkley, by a former marriage, and Avas without consideration. But it appears by the case iioav before the Court that one of the children and grantees in the deed from J. H. Brinkley has sold and conveyed his one undivided fifth interest in said land to the defendant Spruill; that said sale to Spruill was for a full consideration and made before the deed from the said J. IT. to the plaintiff, and before the grantor or the defendant Spruill had any knowledge or information of the plaintiff’s claim to any part thereof. And the question is, does the plaintiff take one-half of the whole tract, or only two-fifths thereof ?
The deed from J. H. Brinkley to his children was good as against him, and Avould have been good against the plaintiff' but for the statute of frauds. But as the plaintiff had an interest, more than a mere equity, it could not be defeated by notice, yet it did not amount to an estate. Poston v. Gillespie, 58 N. C., 258, 75 Am. Dec., 437. And the deed of W. H. to his five children, being voluntary and without con
But as the plaintiff had no estate in the land, if the said I. IT. had sold and conveyed the same, before his deed to the plaintiff, for a full price and without the purchaser having any notice of the plaintiff’s claim, the purchaser would have gotten a good title, free from her claim. And while the deed of J. IT. did not defeat the plaintiff’s rights, for the reasons we have stated, yet it is admitted that the defendant Spruill, before the date of the plaintiff’s deed, purchased, for a full price and without notice of the plaintiff’s claim, one undivided fifth interest in said land. And it seems to us that this gives him a good title to that fifth interest. The Code, Sec. 1548; Potts v. Blackwell, 56 N. C., 449; Triplett v. Witherspoon, 70 N. C., 589.
If the defendant Spruill had bought the undivided interest of each of the grantees for a full price and without notice, as he did this one-fifth interest, the entire estate of the plaintiff would have been defeated, under the authorities we have cited. And if this would have defeated her entire interest, we see no reason why the sale to Spruill did not defeat her interest to the one-fifth part that he did buy.
We are, therefore, of the opinion that the sale by one of the grantees to Spruill, before the date of the plaintiff’s deed, was the same in effect as if W. IT. Brinkley had sold and conveyed to Spruill, for a full price and without notice, one undivided fifth interest in his land; which would have left him the owner of only four-fifths undivided interest therein; and his deed to the plaintiff only conveyed one-half of what he had at the date of tire deed.
The plaintiff is only entitled to two undivided fifths of the whole tract, and not to one undivided half thereof.
There is error in the judgment appealed from, and upon this opinion being certified to the Superior Court of Wash
Error.