33 N.C. 327 | N.C. | 1850
In 1825 William Gibson, James Gibson, Hugh Gibson and John Gibson executed to their father, Joseph Gibson, a written obligation in the penalty of $500 each. The condition set forth that the parties are "the sons and heirs of Joseph Gibson," and having received, and expecting to receive, titles to the whole of the land of said Joseph, bind themselves to discharge all the debts of their father, then due or to be afterwards contracted, and to maintain him during his natural life, and to bury him decently. In 1841 John Gibson conveyed to his brother James, the lessor of the plaintiff, and who was one of the parties to the contract of 1825, the tract of land in dispute, subject to the following condition and proviso: "The condition of the above obligation is such that, whereas the said John Gibson is bound by bond in the sum of $500, dated 29 April, 1825, together with William Gibson, James (328) Gibson and Hugh Gibson, in a like sum for the support of Joseph Gibson, their father, during his lifetime: Now, therefore, the condition of this deed is that the said James Gibson shall well and truly do and perform the covenants and contracts contained in the said bond, by maintaining and supporting the said Joseph during his life, and by burying him in a decent manner, etc., and, also, that the said James shall out of the proceeds, etc., pay certain debts therein enumerated." The deed then provides, but it is understood and agreed, "that the support and maintenance of my father is to have the preference of all other of these claims. After this is performed, the debts of these other creditors are to be paid by the sale of said land in such manner as will make the said land bring the most money. The manner of executing the deed, as to the support of my father, is left to his (said John's) option and discretion. The surplus, after the above trusts are performed, is subject to my order." At the time the deed of trust was executed John Gibson, the grantor, was indebted, was sued and judgment obtained, and a fi. fa. issued and was levied on the land in dispute, and, at the sale, the defendant became the purchaser, and this action is brought by the trustee to recover the possession. His Honor, the presiding judge, ruled that the deed of trust, upon its face, was fraudulent and void as against then existing creditors of *240 John Gibson, and that, therefore, the plaintiff could not recover in this action. The plaintiff then submitted to a nonsuit and appealed.
We are not informed upon what provision in the deed his Honor's opinion rested. It is necessary, therefore, to examine it in all its parts. Does the first provision for the support of Joseph Gibson, the father, make it so? John Gibson (329) was indebted to his father in the sum of $500 for his maintenance; his father was, therefore, a creditor, and it was as much the intention of the deed of John, in conveying his land, to secure that debt as any other; nor does the fact of his giving that debt the preference over the other debts, and postponing them until its discharge, render the deed, in law, fraudulent. So far the deed of trust presents the ordinary case of a debtor making an assignment of property for the payment of his debts, and classifying the claims or designating the order in which they are to be paid. This is not illegal. Moore v.Collins,
PER CURIAM. Judgment reversed, and venire de novo.
Cited: McCanless v. Flinchum,
(331)