38 S.E. 291 | N.C. | 1901
J. A. Long purchased the land in controversy on an execution sale to satisfy a judgment docketed against H. M. Ray. In an action brought on the ejectment, sale, and deed. H. M. Ray was ejected from the land, and the defendant Long put in possession under writ of the Court. H. M. Ray and wife then instituted this action, contending that the wife, Elizabeth Ray, had paid part of the purchase money, under which her husband, H. M. Ray, had bought and taken a deed for land, and, under the circumstances attending the sale, was entitled to have a trust declared in her favor for seven-eights of the same. On amended complaint filed by leave of Court, plaintiff declared in ejectment for the whole tract of land, and contended that H. M. Ray and wife Elizabeth had bought land together, and held the same, as husband and wife, by entries, and that, holding the land in this way, the same was not subject to sale under execution on a judgment against H. M. Ray, the husband. From a judgment for the defendant, the plaintiffs appealed.
Exceptions 4 and 5 must be sustained. It was error when his Honor told the jury, "If, when the land was bought and deed taken from Thomas H. Long, if it was done under an agreement that husband and wife were (91) to hold by entireties," or "to hold an interest in the land according to the amount of her payment," the wife was entitled to the land, or the half thereof (as the case might be). The marriage having taken place since 1868, he should have said to the jury, as laid down in Kirkpatrick v. Holmes,
This renders it unnecessary to consider the other exceptions, since they may not arise on another trial.
New trial.
Cited: S. c.,
