Black v. . Justice

Ashe, J., after stating the case. The exception taken by the defendant to the admission of the sheriff’s deed offered by the plaintiff on account of alleged defect in the probate, would have given us no difficulty except for the opinion expressed by Rodman, J., in the ease of Rollins v. Henry, 78 N. C., 342, in which the learned judge says : “We are of opinion that this deed was improperly admitted. It does not come within any of the cases provided for by the statute;”’ (Bat. Rev., ch. 35., § 2, sub. div. 3 and 4) and held/that although a deed may be admitted to registration, by proof at common law, to make it evidence its execution must be proved on the- trial, and for the position cited the case of *510 Carrier v. Hampton, 11 Ired., 307. We cannot give our as-assent to such a construction of those sections of the Revisal. It will be noted that the decision in the case of Carrier v. Hampton, was made in 1850, at a time when the only statute law for the probate of deeds for registration was contained in the Revised Statutes, in which, there was no provision for the probate of a deed having no subscribing witness. This omission was afterwards supplied by section 15 of chapter 37 of the Revised Code, which declared that “ in all cases of the probate of any deed or other instrument required or allowed to be registered, having a subscribing witness who may be dead, satisfactory proof of his hand-writing or of the hand-writing of the grantor or maker, when there is no subscribing witness, shall be deemed sufficient proof for the purpose of allowing tlie registration thereof.” It will be noticed that the act makes no reference to the death of the grantor but only to that of the subscribing witness. By implication so much of this 15th section of chapter 37 of the Revised Code, as provided for the proof of the hand-writing of the grantor, when there was no subscribing witness, was repealed by the 2nd section of the act of 1871, ch. 271, which provided that, “ whenever any such instrument (such as is required or allowed to be registered) shall not have a subscribing witness, and the maker thereof shall be a non-resident or dead, proof of his hand-writing shall be sufficient to admit the same to registration.” But in the next year after the passage of this act the 15th section of chapter 37, Revised Code, was re enacted by the act of 1872, ch. 28; and the same act declares that all laws and clauses of laws in conflict with its provisions are repealed. The effect of which was to repeal the 2nd section of the act of 1871, ch. 271. And sub-division 3 of Bat. Rev., ch. 35, § 2, is the act of 1871, and sub-division 4 is the act of 1872 ; the latter therefore repeals so much of the former as is in conflict with it *511 and our opinion is that the deed was properly admitted in evidence. In considering the case upon the exceptions, we think its determination depends mainly upon the correctness of the ruling of His Honor upon the first and second exceptions of the defendants, and they present the questions — first, was the land in dispute bought with the money of the defendant M. J. Justice? and secondly, has the plaintiff the right to recover the possession of the land under the pleadings and evidence in the action ? Assuming the testimony of Mrs. Justice to be true, and conceding that the land was bought with the money which was the proceeds of the sale of her land, just so soon as the land was converted into money it was personal property and vested in her husband by virtue of his marital rights. Temple v. Williams, 4 Ired. Eq., 39; Rouse v. Lee, 6 Jones Eq. 352; Ramsdale v. Craighill, 9 Ohio, 198; Sabel v. Slingluff, 62 Maryland 13, and Hackett v. Shuford, at this term, ante, 144, and cases there cited. Nor is this principle changed or affected by the fact-that the defendant M. J. Justice was an infant at the time of making the executory contract for the sale of'her land, for the conversion was not made until the contract was consummated by the receipt of the purchase money and the execution of the deed by herself and her husband, which was after she attained her majority. The doctrine, as to money converted into land or land into money, applies to cases where the conversion is directed in wills or made by sales authorized by the courts of equity. In this state it is held that the proceeds of real estate sold under a decree of court and belonging to infants and femes covert remain real estate, until the infant arrives at age and elects to hold the same as personalty, or the feme becomes discovert, or, by some valid act under the law while covert, makes her election or disposes of the fund; and while this was the rule *512 without any staiutory provision, it is distinctly declared in the statute to be applicable to cases where such sales are authorized by decrees of court. Bateman v. Latham, 3 Jones Eq., 35; March v. Berrier, 6 Ired. Eq., 524; Scull v. Jernigan, 2 Dev. & Bat. Eq., 144. But aside from the legal view of the question, upon the testimony of Mrs. Justice alone, the evidence offered in regard to the payment of the money was such as to warrant the jury in coming to the conclusion, as a matter of fact, that it was the money of Benjamin Justice, and there was no error in the refusal of His Honor to give the instructions asked by the defendant upon this point. The fact then having been found by the jury that the consideration of the deed made by the sheriff to M. J. Justice was money which was the property of Benjamin Justice, the sale made by the sheriff was a nullity. For if a defendant in an execution places money in the hands of another for the purpose of purchasing his own property at a sale under execution, with intent to defraud his creditors, and that person buys it and takes a deed for it, he is still the owner of it, and it may be sold to satisfy the judgment of another creditor. Dobson v. Erwin 1 Dev. & Bat., 569. Upon this ground alone the plaintiff would have the right to recover, provided the land was subject to execution sale, and the action to secure possession can be maintained. And about that there can be no doubt. The defendants’ counsel in their brief filed in the cause, rely upon the authority of the case of Tally v. Reed, 74 N. C., 463, but that cáse has no application. The question there was, whether, when a vendor of land retains the title to secure the payment of the purchase money, a sale of the land under a fi.fa. against the vendor passes to the purchaser at sheriff’s sale only the^naked legal title, and vests in him the right to the purchase money. But the case of Davis v. Evans, 5 Ired., 525, does apply, and is decisive of the question. Chief Jus *513 tice Ruffin, speaking for the court in that case, says: “We consider that the act of 1812 makes the equity of redemption, when sold under execution, a legal interest to the extent, at least, of enforcing it by the recovery of possession from the mortgagor himself.” There is no error in the instructions of the plaintiff given by His Honor, except the fourth and fifth. There is no proof that the sheriff participated in the alleged fraud and combination to prevent a competition at the sale, and unless he did so, the sale is not void. Hill v. Whitfield, 3 Jones, 120; Crews v. First National Bank, 77 N. C., 110. But the error is immaterial and cannot affect the result for the verdict and judgment upon a view of the whole case appears to be right, and when that is the case, an error which has become immaterial will not be noticed. Norwood v. Morrow, 4 Dev. & Bat., 442. We are of the opinion there was no error, and the judgment of the superior courtis therefore affirmed. No error. Affirmed,