Tucker v. . Almond

Clarkson, J. The question involved: Do judgments entered against administrators, as set out in the agreed statement of facts, create an encumbrance on land conveyed by deed prior to his death, when deed is not recorded until after the judgments are docketed against the administrator? "We do not think the judgments against the administrator, under the facts and circumstances of this case, were encumbrances against the land in controversy. In the agreed facts, section 12, is the following: “That in said deed executed by the said G. F. Almond and wife to R. J. Tucker, the said Almond and wife covenanted with plaintiff that said land was ‘free from all encumbrances.’ ” Black’s Law Dictionary (3d Ed.), p. 947 — Encumbrance, see Incumbrance — citing a wealth of authorities, says: “Any right to or interest in land which may subsist in another to the diminution of its value, but consistent with the passing of the fee. ... A claim, lien, charge, or liability attached to and binding real property. . . . An encumbrance may be a mortgage; a judgment lien; an inchoate right of dower; a mechanic’s lien; a lease; a restriction in deed; encroachment of a building; an easement or right of way; accrued and unpaid taxes; the statutory right of redemption. . . . Incumbrancer — The holder of an incumbrance, e.g., a mortgage, on the estate of another.” In 7 R. O. L. (Covenants), part sec. 48, p. 1134, is the following: “The contract to convey free from encumbrances ordinarily has reference to encumbrances of liens actually existing when the contract is executed, or thereafter created, or suffered by the act or default of the vendor.” Sec. 31, pp. 1136-7: “Encumbrances within the meaning of the covenant against encumbrances include such interests therein or burdens as the following: A paramount right in the lands, a valid tax or assessment; an attachment, judgment, or mechanic’s lien; a lien of an outstanding mortgage; a building restriction; and, as a general rule, that great variety of rights or interests in land, comprehended under the general term ‘easements.’ ” Hahn v. Fletcher, 189 N. C., 729 (731) — a street assessment termed a statutory mortgage. *338 In Eaton v. Doub, 190 N. C., 14, the facts are entirely different, the judgment liens had attached and execution had been issued. N. C. Code, 1935 (Michie), sec. 3309, in part, is as follows: “No conveyance of land, or contract to convey, or lease of land for more than three years shall be valid to pass any property, as against creditors or purchasers for a valuable consideration, from the donor, bargainor, or lessor but from registration thereof within the county where the land lies,” etc. N. O. Code, supra, sec. 131: “No judgment of any court against a personal representative shall fix him with assets, except a judgment of the judge or clerk, rendered as aforesaid, or the judgment of some appellate court rendered upon an appeal from such judgment. All other judgments shall be held merely to ascertain the debt, unless the personal representative pleading expressly admits assets.” An absolute judgment against the representative neither fixes the defendant with assets nor disturbs the order of administration. It merely ascertains the debt sued on. Dunn v. Barnes, 73 N. C., 273, 277. N: C. Code, supra, sec. 132: “All executions issued upon the order or judgment of the judge or clerk, or of any appellate court, against any personal representative, rendered as aforesaid, shall run against the goods and chattels of the deceased, and if none, then against the goods and chattels, lands and tenements of the representative. And all such judgments docketed in any county shall be a lien on the property for which execution is adjudged as fully as if it were against him personally.” N. C. Code, supra, sec. 166: “An action may be brought by a creditor against an executor, administrator, or collector on a demand at any time after it is due, but no' execution shall issue against the executor, administrator, or collector on a judgment therein against him without leave of the court, upon notice of twenty days and upon proof that the defendant has refused to pay such judgment its ratable part, and such judgment shall be a lien on the property of the defendant only from the time of such leave granted.” (Italics ours.) The admitted facts show that G. E. Almond paid $1,250 for the property in 1922 and sold it for $800 in 1935. The sale by G. E. Almond to R. J. Tucker in 1935 was a bona fide sale for value. The whole transaction was in good faith and for value. We do not think the judgments against the administrator a lien on the property in controversy, and the covenant in the deed “free from all encumbrances” in the ordinary and common acceptance of the words does not make the judgments encumbrances. Eor the reasons given, the judgment of the Court below is Reversed.