Sutton v. . Sutton

190 S.E. 718, 211 N.C. 472, 1937 N.C. LEXIS 131

• Court: Supreme Court of North Carolina
• Decided: April 7, 1937
• Status: Published

Opinion

PeR Cueiam.

The material allegations in the complaint setting forth a cause of action against the defendant Guy Sutton may be stated concisely as follows: that in 1926 the plaintiff J. W. Sutton, the father, and defendant Guy Sutton, the son, purchased as tenants in common certain land at the price of $16,300, the plaintiff paying one-half therefor in cash, and be and defendant Guy Sutton executed deed of trust on the land for the remaining one-half of the purchase price, which deed of trust the defendant Guy Sutton agreed to pay off and discharge; that defendant failed to pay off the deed of trust which represented bis one-half of the purchase price; that plaintiff was adjudged non compos mentis in 1927, and remained in that condition until 1934, when be was adjudged sane; that while plaintiff was insane, defendant Guy Sutton instigated and procured the sale of the land under foreclosure for the purpose of depriving plaintiff of bis interest in the land and acquiring the title to the entire interest therein in himself, and that defendant Guy Sutton thereupon took title from the purchaser at the foreclosure sale, upon the execution of a deed of trust on the land for the purported sale price of $5,778, and now bolds tbe said land to tbe exclusion of tbe plaintiff.

It is apparent that the facts alleged are sufficient to constitute a cause of action against the appellant and that the demurrer was properly overruled. One tenant in common, under obligation to discharge an encumbrance on the land, may not procure a foreclosure sale thereunder and acquire, either directly or indirectly, the title to the entire interest in the land to the exclusion of bis cotenant. Equity will declare him to have purchased for the benefit of the other. Bailey v. Howell, 209 N. C., 712; Gentry v. Gentry, 187 N. C., 29; Smith v. Smith, 150 N. C., 81.

Affirmed.