#### J. T. JEFFREYS v. B. A. HOCUTT and Wife, LUCILE HOCUTT, and J. D. JEFFREYS and Wife, NANCY JEFFREYS.

(Filed 21 March, 1928.)

1. Execution — Wrongful Execution — Rights and Liabilities of Parties After Execution Set Aside.

Where lands are sold under execution of a valid judgment and the purchaser has conveyed the same to another under a deed with full covenant and warranty of title, and the judgment debtor has successfully maintained his action to have the sale under execution set aside as void, the grantee in the deed from the purchaser at the execution sale is entitled in equity to subrogation of the rights of the execution creditor under the doctrine of an equitable assignment of such judgment to the extent that the lien thereof had been diminished.

2. Husband and Wife — Abandonment—Liability of Husband to Guardian for Support of Abandoned Wife and Children.

Where the owner of lands living thereon abandons his wife and children, and leaves the State, and his wife and minor children without support, and another took and supported them and has purchased the lands from the purchaser under an execution sale, taking deed with full covenants and warranty of title, upon the return of the execution debtor and his successfully maintaining his suit to have the deeds declared void: Held, the one who took and supported them is entitled in the settlement to the moneys he has reasonably expended for the support and maintenance of the wife and children, and this may be set up as a counterclaim against a recovery for the rents and profits, and judgment may be rendered in the same action (C. S., 456, 507, 535, 519, 521, 522). C. S., 4447 and amendments; C. S., 1667.

Appeal by plaintiff from Grtonm&r, J., at Special November Term, 1927, of JohNStoN.

Affirmed.

Tbe court below rendered tbe following judgment, in part: “That tbe exceptions of tbe defendants as to amount of rents and an amount for personal property charged to tbe defendant, Hocutt, while be was acting as guardian, and as such guardian was cultivating tbe lands in dispute, should be sustained. Tbe court further finds as a matter of law, that tbe defendant, B. A. Hocutt, should account for rents of tbe lands from 11 April, 1924, up to tbe present, and that be is entitled as a matter of law to tbe counterclaim of all improvements placed upon said lands since that date, as well as taxes expended on said lands, together with tbe amount of money which be paid for said land on said 11 April, 1924, to wit, $1,408.35, with interest from that date until paid. Tbe court finds that tbe evidence, warrants tbe findings of facts of tbe referee in that tbe lands from 1924, unto tbe present was worth for each crop year tbe sum of $340, and tbe said amount with tbe interest due on tbe same *340will total as of this day tbe sum of $1,482.40. Tbe court further finds tbat there is evidence to sustain tbe findings of tbe referee that tbe defendant, B. A. Hocutt, is entitled to a counterclaim tbe total amount as found by said referee in bis itemized statement as filed in bis report in this matter, to wit, tbe sum of $3,701.81, with interest from 11 October, 1927. It is therefore considered, ordered and adjudged, tbat tbe defendant, B. A. Hocutt, recover of tbe plaintiff, J. T. Jeffreys, tbe sum of $2,219.41, together with interest on tbe same from 11 October, 1927, and $75 of the referee’s fee, but-the cost of this action to be taxed by tbe cleric of this court, and including therein a fee of $150 for J. Ira Lee, referee in this matter against tbe defendants. Tbat tbe foregoing judgment is declared a special lien upon tbe interest of tbe said J. T. Jeffreys, to wit: His life estate in tbe lands described in tbe pleadings in this cause.”

Tbe other necessary facts and assignments of error will be considered in tbe opinion.

Parker & Martin for plaintiff.

Leon G. Stevens and Winfield E. Lyon for defendants.

ClabKSON, J.

(1) Plaintiff, J. T. Jeffreys, owned a life estate in about 186 acres of land in Wilder’s Township, Johnston County, N. C. Tbe remainder was owned by bis minor children. (2) Early in tbe year 1920, prior to April, J. T. Jeffreys (fled tbe State) abandoned bis wife, Octavia Jeffreys, who was an invalid, and minor children, leaving them without any means of sustenance or support. Tbe defendant, B. A. Hocutt, is tbe brother of Octavia Jeffreys, tbe wife of plaintiff, J. T. Jeffreys, who, after tbe abandonment of bis sister and her children, took them in bis home and provided for and supported them and educated tbe two girls and expended some $12,000 more than tbe rents and profits of tbe farm. That B. A. Hocutt was appointed guardian on 20 September, 1920, for tbe minor children, and took charge of tbe land and used tbe rent and more in support and maintenance of tbe abandoned wife and children, and continued in possession of said land as such guardian until 11 April, 1924. (3) Bryant Rayborn, in tbe Superior Court of Johnston County, recovered a judgment against J. T. Jeffreys and J. D. Jeffreys, totaling in all $1,408.35. An execution was issued and tbe land sold by tbe sheriff and J. D. Jeffreys became tbe last and highest bidder. At tbe time plaintiff was a nonresident of tbe State. Tbat on 11 April, 1924, J. D. Jeffreys and wife, Nancy Jeffreys, conveyed tbe life estate which be purchased at execution sale to B. A. Hocutt for $1,408.35. (4) Tbe plaintiff, J. T. Jeffreys, returned to tbe State and brought this action 3 November, 1925, claiming tbe sale was *341void from tbe sheriff to J. D. Jeffreys and from J. D. Jeffreys and wife to B. A. Hocutt, and praying that be recover tbe possession of tbe land and $5,000 from B. A. Hocutt for rents for tbe years 1920 to 1925, inclusive.

The ease was appealed to this Court. Jeffreys v. Hocutt, 193 N. C., p. 332. The facts were: “The execution issued on 14 December, 1921, was returnable to the February Term, 1922. This term began Monday, 20 February, and ended on Saturday, 4 March. The sale was made on the first day of the next term, which was 13 March, the plaintiff laying no claim to a homestead exemption.” This Court held that the sale of land made after the execution expired was void.

After the above decision was rendered, the court below made an order which in part is as follows: “It is therefore considered, ordered and adjudged that J. D. Jeffreys be, and be is hereby subrogated to all rights of the plaintiff, Bryant Rayborn, in a certain judgment, which is duly docketed in the clerk’s office of the Superior Court of Johnston County, in Judgment Docket., page., as aforesaid; and it appearing to the court that J. T. Jeffreys has paid no part of said judgment, but be claims before this court that J. D. Jeffreys is entitled to account for rents off of the lands for a certain number of years.” Tbe plaintiff excepted-to this order.

Tbe matter was referred to J. Ira Lee, referee, who filed bis report and defendants made certain exceptions which were beard by tbe court below, and tbe finding of fact and conclusions of law are set forth in tbe judgment above set forth.

It is not disputed that tbe plaintiff, J. T. Jeffreys, owed tbe Bryant Rayborn judgment, treated on tbe record, amount due $1,408.35, as of 11 April, 1924. Tbis judgment was a lien on plaintiff’s land, life estate. Tbis judgment was against plaintiff J. T. Jeffreys and defendant J. D. Jeffreys. J. D. Jeffreys purchased tbe land under execution for $1,408.35, and in turn sold it to B. A. Hocutt for tbe same amount. At tbe instance of plaintiff both deeds were declared void.

. Plaintiff still owes tbis debt. All are parties to tbe action and all tbe facts of tbe entire matter are set forth in tbe pleadings and proper relief prayed for. J. D. Jeffreys prays for judgment against plaintiff for $1,408.35 and admits be gave a warranty deed to Hocutt, and if tbe deed to him at tbe execution sale was void be would owe Hocutt $1,408.35 and interest. B. A. Hocutt alleges that be purchased tbe land without knowledge of any defect in tbe title, sets up J. D. Jeffreys’ warranty, and if tbe deed be declared void that J. D. Jeffreys would owe him $1,408.35.

The principle is set forth in Perry v. Adams, 98 N. C., at p. 172, as follows: “The plaintiff, however, undertook to purchase the land, so far *342as appears, in good faith, and to the extent that the money he paid to the administrator was applied to the payment of debts of the intestate and the costs of administration that the personalty was insufficient to pay, to the extent he relieved the land in question, and is entitled to be subrogated to the rights of the creditors, whose debts and costs were so paid, and to have the sum of money due him charged upon the land. It would seem unconscionable to allow the feme defendant in that case to have the land discharged of the debt due the plaintiff for money thus paid by him and applied to relieve the same,” citing numerous cases. Brown v. Harding, 171 N. C., at p. 691; Mfg. Co. v. Blalock, 192 N. C., at p. 413.

In Pub. Co. v. Barber, 165 N. C., at p. 487-8, speaking of subrogation, it is said: “The doctrine is one of equity and benevolence, and, like contribution and other similar equitable rights, was adopted from the civil law, and its basis is the doing of complete, essential and perfect justice between all the parties without regard to form, and its object is the prevention of injustice.”

As to subrogation the clear right to the ownership of the judgment is in J. D. Jeffreys. The deeds, at the instance of plaintiff, have been declared void. Under the pleadings and facts and circumstances of this case, there is an equitable assignment of the judgment to B.. A. Hocutt.

The referee found that B. A. Hocutt was entitled to the $1,408.35 and interest from 11 April, 1924, clearing land (destumping) $80 and interest, to pack barn $800 and interest, to tobacco barn $150 and interest, taxes from 11 April, 1924, to 11 October, 1927, $696 and interest, the whole amounting to $3,701.81. All the improvements were put on the land and taxes paid subsequent to the purchase by B. A. Hocutt 11 April, 1924, the $80 clearing (destumping) land was done prior. Plaintiff did not appeal from these findings of the referee. The exception was only to the $1,408.35 and interest which, for the reasons given, cannot be sustained. B. A. Hocutt was charged by the referee with rent from April, 1920, to 11 October, 1927, eight years at $340 a year, total $2,720 and interest, and personal property of plaintiff left on hand when he abandoned it and used by Hocutt, April, 1920, $90 and interest, total $3,423.10. The referee found that plaintiff owed B. A. Hocutt the difference of $278.71. The court below overruled the finding of the referee as to the entire eight years rent, $2,720 and interest, and the $90 personal property and interest, to be charged against B. A. Hocutt, and found that B. A. Hocutt should account for the rent from 11 April, 1924, up to the present, four, years at $340 a year and interest, amount to the total of $1,482.40, which deducted from the $3,701.81, left $2,219.41, for which judgment was rendered B. A. Hocutt with *343interest from 11 October, 1927. Tbe plaintiff excepted to tbe $90 personal property left on tbe place and wbicb was used on tbe plantation by B. A. Hocutt, and also tbe counterclaim for tbe rents from April, 1920, to 11 April, 1924, four years rent at $340 a year and interest.

We think plaintiff’s assignments of error cannot be sustained. J. T. Jeffreys, the plaintiff, fled the State and abandoned bis wife and minor children. For the four years plaintiff was absent and not beard from, and no demand made by bim for the premises, B. A. Hocutt, as guardian and agent, took the rents of the land and profits and expended it and more than $12,000 of bis own money in the support and maintenance of the invalid, deserted wife and children, and even gave the two minor girls a college education at the expense of more than $6,000. Tbe plaintiff owed a legal and moral obligation to support and maintain bis wife and children.

In Miller v. Marriner, 187 N. C., at p. 457, it is held: “It seems to be settled that ordinarily a life tenant must pay the taxes and the interest on a, mortgage indebtedness to the extent, at least, of the income which be receives from the property, but be is not bound to pay the principal of the mortgage.”

In 27 R. C. L., under Waste, p. 1016, it is said: “There is, however, authority to the effect that allowing a farm to grow to weeds and lie untilled is waste.”

C. S., 4447, is as follows: “If any husband shall wilfully abandon bis wife without providing adequate support for such wife, and the children which be may have begotten upon her, be shall be guilty of a misdemeanor.”

This was construed in S. v. Bell, 184 N. C., p. 701, rendered 8 November, 1922, and it was there held: That wilful abandonment of the father of his children of the marriage is made a separate offense of like degree with that of his wilful abandonment of bis wife.

Public Laws 1925, chapter 290, added a proviso to C. S., 4447, as follows: “Provided, that the abandonment of children by the father shall constitute a continuing offense and shall not be barred by any statute of limitations until the youngest living child shall arrive at the age of eighteen years.”

C. S., 1667, in part is as follows: “If any husband shall separate himself from bis wife and fail to provide her and the children of the marriage with the necessary subsistence according to bis means and condition in life, or if be shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court of the county in which the cause of action arose *344to have a reasonable subsistence and counsel fees allotted and paid or secured to h her from the estate or earnings of her husband. Pending the trial and final determination of the issues involved in such action, and also after they are determined, if finally determined, in favor of the wife, such wife may make application to the resident judge of the Superior Court, or the judge bolding the Superior Courts of the district in which the action is brought, for an allowance for such subsistence and counsel fees, and it shall be lawful for sucb judge to cause the busband to secure so much of bis estate or to pay so much of bis earnings, or both, as may be proper, according to bis condition and circumstances, for the benefit of bis said wife and the children of the marriage, having regard also to the separate estate of the wife.” Vincent v. Vincent, 193 N. C., p. 492.

In Thayer v. Thayer, 189 N. C., p. 507 (39 A. L. R., p. 428), it is said: “Nearly one hundred years ago, Taylor, C. J., in Kimbrough v. Davis, 16 N. C., p. 75, said: 'The natural obligation of a parent to maintain bis illegitimate offspring, cannot be doubted (Puffend 6, 4, ch. 11, sec. 6).’ . . . ‘Past seduction (says Chancellor Kent) has been held a valid consideration to support a covenant for pecuniary reparation; and the innocent offspring of a criminal indulgence has a claim to protection and support, which courts of equity cannot and do not disregard.’ Brown v. Kinsey, 81 N. C., p. 245, and cases cited. The Kimbrough case was cited and approved in Sanders v. Sanders, 167 N. C., p. 318: ‘There can be no controversy that the father is under a legal as well as a moral duty to support bis infant children (Walker v. Crowder, 37 N. C., 487), and, if be has the ability to do so, whether they have property or not. Hagler v. McCombs, 66 N. C., 345. There is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces. Burton v. Belvin, 142 N. C., 153; Kimbrough v. Davis, supra. ”

The agreed statement of facts upon which the title to the land was solely considered in the prior decision passed upon by this Court, says : “That the other issues between the parties raised by the pleadings are collateral to the question of title, and are reserved for further orders of the court.”

We think the matters can all be settled in one action. C. S., 456; C. S., 507; C. S., 535; also C. S., 519; C. S., 521; C. S., 522; Cotton Mills v. Maslin, ante, p. 12; Cotten v. Laurel Park Estates, post, 141 S. E., 339; Thompson v. Buchanan, ante, 155.

Under all the facts and circumstances of this case, it would be unconscionable and contrary to all principles of justice and equity to deny B. A. Hocutt bis counterclaim against tbe plaintiff’s claim for rents and profits of tbe land during tbe plaintiff’s absence, when tbe proceeds *345were admittedly used to fulfil an obligation solely resting on plaintiff to support bis wife and children whom be bad deserted.

Tbe court below- bas allowed tbe defendant’s counterclaim or set-off to plaintiff’s claim for rent and tbe $90 and interest, and tbis is supported by evidence. Tbe judgment, under settled principles of law and equity, must be

Affirmed.