Harris v. Carolina Distributing Co.

AlleN, J. It has been held in this State that an action cannot be maintained to restrain the sale of land under execution upon tbe ground that tbe sale and tbe deed made pursuant thereto will be a cloud on tbe title of tbe plaintiff (McLean v. Shaw, 125 N. C., 431), but this has been changed by statute (Crockett v. Bray, 151 N. C., 618), and a plaintiff can, under tbe law as it now exists, restrain a sale under execution if tbe deed of tbe officer who sells will not pass title and will only throw a cloud upon tbe title of tbe plaintiff. Tbe determination of tbe appeal, therefore, depends on tbe estate acquired by L. P. Harris under tbe deed to Eodman, trustee, and whether, it is such an estate as is subject to tbe lien of a judgment and a sale under execution issued thereon. Tbe deed conveys the land to Eodman, trustee, for tbe benefit of L. P. Harris and his wife, Nellie J. Harris, for and during their natural lives, with a general power of disposition in L. P. Harris. *16 Tbe estate of L. P. Harris and bis wife is an estate by entireties (Motley v. Whitemore, 19 N. C., 537; Bruce v. Nicholson, 109 N. C., 204), and such an estate is not the subject of sale under execution. Hood v. Mercer, 150 N. C., 699. In tbe last case cited tbe Court says, in speaking of estates by entire-ties, tbat “While, to some extent, former decisions of tbis Court in respect to tbis estate bave been modified, we bave beld, in recent years, tbat under a conveyance of land in fee to husband and wife they take by entireties, with, right of survivorship, and tbat tbe interest of neither during their joint lives becomes subject to tbe lien of a docketed judgment. During tbe wife’s life the busband has no sucb interest as is subject to levy and sale to satisfy a judgment against him. Bruce v. Nicholson, 109 N. C., 202; West v. R. R., 140 N. C., 620.” It is also well settled tbat a general power of appointment conferred upon a life tenant does not enlarge bis estate. In Patrick v. Morehead, Ashe, J., speaking for tbe Court, says: “It has been settled upon unquestionable authority -that if an estate be given by will to' a person generally, with a power of disposition or appointment, it carries tbe fee; but if it be given to one for life only, and there is annexed to it sucb a power, it does not enlarge bis estate, but gives him only an estate for life.” "We are therefore of opinion tbat tbe plaintiff L. P. Harris has no estate under tbe deed executed to Rodman, trustee, which is subject to sale under execution, and as tbe sale and tbe deed made to carry it into effect would be a cloud upon tbe title of tbe plaintiffs, tbat they are entitled to bave tbe restraining order continued to tbe bearing. Tbe defendant is not in a position to avail himself of tbe contention tbat tbe deed from L. P. Harris to bis wife and tbe deed to Rodman, trustee, are fraudulent as to creditors, because its debt was contracted after tbe execution and registration of those deeds, and it does not appear tbat there is any debt owing by either of tbe plaintiffs which was in existence at tbe time of their execution. Reversed.