30 S.E. 334 | N.C. | 1898
The plaintiff and others had an ex parte proceeding to sell land for division and in the due course of this action, land was sold and purchased by the defendant, who gave his note for the purchase price. The sale was confirmed in 1875, and the commissioner was ordered to make a proper deed to defendant as soon as the purchase money was paid, and to pay the money out to the parties entitled. All the other petitioners were paid off, and several years after the decree of confirmation was recorded and order for title and distribution, the defendant, in 1893, executed his note to plaintiff for the share of his *163 wife, which had not been paid, promising to pay the balance of the purchase money belonging to the plaintiff's wife, expressly reciting "when this note is paid in full said commissioner shall execute a deed" for the land, and this action is on that note. Defendant contends that plaintiff's remedy is by motion in the ex parte petition above referred to, and moved to dismiss this action. His Honor allowed the motion and plaintiff appealed. This is the only question.
The defendant relies upon the principle announced in Council v.Rivers,
Reversed.