Williams v. . Munroe

Bowden, J. Several questions in this case were discussed by defendant’s counsel, which this Court holds cannot be raised in this action, as now constituted. The action is against the widow of the bargainor in a deed of trust, under which a sale was made and the land purchased by the plaintiffs’ testator. The defendant in this case can set up no defence which could not be set up by the bargainor in the deed of trust. The widow, the defendant in this case, can set up no defence not allowed her husband. This is settled by the case of Mc- *167 Neill v. Riddle, 66 N. C. R. 290. In that case the widow, in the lifetime of her husband, had purchased the land at a Sheriff’s sale, under a judgment and execution subsequent to the making' the deed of trust. It was held that her possession could not be adverse to the trustee or to a purchaser under the trust. So here, although the bargainor had been declared a bankrupt subsequent to the execution of the deed of trust, and the bargainor’s interest in the Jand had been sold by the assignee and purchased ' by the widow, the defendant; still, her title, if any, thus acquired could not be set up as a defense to this action. The purchaser from the assignee in bankruptcy could stand in no better condition than a purchaser at Sheriff’s sale under a judgment and execution. Walke and wife v. Moody et al., 65 N. C. R. 599. The Sheriff, or the assignee, could sell only such interest as the bargainor in the trust had, and all that was subject to the prior right of the purchaser under the trust. The defendant, in her answer, sets up the deed of trust under which the plaintiffs claim, and alleges, that this need of trust, besides the land in controversy, conveyed some seventeen valuable slaves, that these slaves were ample for the payment of the debts secured in the trust, and were to be first sold; and that the trustee was guilty of negligence and unfaithfulness in not selling the slaves, and paying the debts out of the proceeds of such sale. What claim there may be against the trustee for negligence or unfaithfulness, cannot be made a question in this case; and parties interested must pursue their remedy against the trustee, if they have any. The fifth defense set up in the answer of the defendant cannot be made in this action — that the plaintiffs’ testator was a member of the firm of Murchison, Reed & Co., and one of the trustees in the deed of trust of Christopher Munroe, and therefore could not become a purchaser at his own sale. The deed of trust is to John D. Williams alone, the plaintiffs’ testator *168 being one oí cestui que t/r%(,sts in said deed; but if it were as alleged it would not avail the defendant. The seventh defence set up, to wit: that the husband, at his death, had an equitable interest in the lands, and that his wife was entitled to be endowed of that equity, cannot avail the defendant, as the deed of trust, under which the plaintiffs claim, was made subsequent to the marriage of the defendant with the bargainor in trust. His Honor submitted two, and only two, questions to tlio jury. “First, was the Bank debt of Christopher Munroe, upon which Duncan Murchison, Alexander Murchison and Archibald Graham were endorsers, and to indemnify whom the deed of mortgage was made to them as mortgagees, of the 5th of December,” 1856, paid and satisfied in the manner testified by John D. Williams? “ Second. Were the slaves retained in possession of Christopher Munroe after the execution of the deed of trust to John D. Williams, trustee, of the 25th April, 1859, and the salo under the trust postponed by the trustee, at the instance of Christopher Munroe, with the concurrence of the cestui que trusts until emancipation, thus rendering recourse to the land necessary to pay the debts secured in the trust?” • Both the questions thus submitted to the jury wore found in favor of the plaintiff's, and if his Honor erred at all it was not against the defendant. There is no error. This will be certified. Per Curiam. ■ Judgment affirmed.