(IN EQUITY.)
1. I. made a deed to S. for land, which was destroyed before registration by a combination of I. and S. to defraud a creditor of S., and afterwards, but before the act of 1812, c. 4, the land was sold under an execution against S., who was present at the sale and declared the land was his and urged P. to buy it, who accordingly did purchase it.
2. Quere, Did the legal title of the land pass by the sheriff's sale? Held, that it was unnecessary to decide that here, because P. had no means of showing it at law as the deed was destroyed, and that gave him the right to resort to equity. Held also, that he might do so after an ineffectual attempt to defend himself at law against I. Held, also, that if S. was only the equitable owner, his conduct at the sale would constitute P. his assignee in equity and authorize him to call for the legal title.
3. Infants who prosecute an unjust claim at law and thus compel the defendant there to come into equity for an injunction and relief, and who here again set up an inequitable defense, shall pay costs.
The Court having thus intimated an opinion, Seawell contended that if complainant got a decree he could not recover costs. The defendants are heirs at law, having no knowledge of the facts upon which the equity of Sykes and Price rested, and some of them are infants, who are not to blame for the defense set up here or the claim asserted at law for them by their next friends. Infants never pay costs. 3 Atk., 223; 2 N.C. 371.
TAYLOR, C. J.
Whether the complainant had a legal title to the land for which he was sued, it is unnecessary to decide, because he was unable to establish it upon the trial at law, in consequence of the destruction of the deed, which was effected (92) by the fraudulent combination of Sykes and Isles. That gives this Court jurisdiction, and his remedy is properly sought here. With respect to the other thirty acres, Sykes was the equitable owner, and might for a valuable consideration assign his equitable title to Price, who, purchasing bona fide, could compel Isles to convey to him the legal title.
When, therefore, Price became the purchaser at the sheriff's sale, at the request of Sykes, and after his declaration that the land belonged to him, he stood upon the ground of an assignee, and is well entitled to a deed.
With respect to the costs, they ought to be paid by the defendants, since they prosecuted an unjust claim at law, and have set up an inequitable defense in this Court. In such case the infancy of the defendants forms no excuse.
The Court consisted of the Chief Justice, Hall and Murphey, and the decree was that the defendants, who were of full age, should immediately execute a conveyance to complainant for the whole tract of sixty acres, with covenants of title as against themselves and those claiming under them; that the infant defendants should, within one year after full age, execute similar conveyances, respectively; that complainant should forthwith be let into possession and be quieted therein, and an account of rents and profits was ordered, and that defendants should pay all costs at law and in equity, reserving to the infants six months after full age and service of the decree to show cause against it.
Cited: Morris v. Ford, 17 N.C. 418; Hardin v. Barrett, 51 N.C. 162; Vestal v. Sloan, 83 N.C. 557; Ray v. Wilcoxon, 107 N.C. 523; Arrington v. Arrington, 114 N.C. 171; Patterson v. Ramsey, 136 N.C. 566; Dew v. Pyke, 145 N.C. 305.
(93)