#### GILLIAM RUTLEDGE *against*JOHN SMITH AND OTHERS.

A court of Equity will correct thd mistake by which the word “heirs” is omitted in a deedi

The purchaser from an obligor in a bond to make title, buying with notice of obligee’s claim, will be considered a trustee for the latter.

By Pearson, J. Whether in North Carolina, a purchaser from a trustee with, power to sell, must see to the application of the purchase money, *Quere*?

*284Ikt 1826, Joseph Beal, Sen., died seised of a tract of land containing about two hundred and ten acres, as set out in the pleadings, and leaving a will by which be devises the same to his wife for life, and after her death, devises to Joseph Bea], Jr.,'his .son, one hundred acres of the land, and directs that the rest of the land (except one acre for the Meeting House,) should, after the death of his wife, be sold, and the proceeds of the sale be equally divided among his other children, and he appoints Joseph Beal, Jr., his executor.

In 1831, Joseph Beal, Jr., contracted to sell the land devised to him by his father’s will to one Jesse Whitaker, who is made a party defendant, and gave bond to make title, and soon after-wards removed from this State.

In 1835, the widow of Joseph Beal, Sen., died, and thereupon Whitaker took possession of the land, claiming under the bond for title ; and, in ■] 840, he made a deed of trust *to one*Anderson, by which ho conveyed the whole tract of land and certain personal property in trust to sell and pay a debt due to one Taylor. Anderson sold, and Taylor became the purchaser. Taylor died, leaving one Carson his executor, with power to sell real estate.

In 1843, Carson sold all the interest and estate of his testator in the tract of land to the plaintiff, who, in 18-14, took possession of the same, which had, up to that time, been in the possession of Whitaker.

In 1847, Joseph Beal returned to this State, and made sale of the tract of land, and it was purchased by Ijames, who afterwards sold to the defendant Smith, by whom the defendant was ejected.

The plaintiff alleges that in 1843 or 1844, Joseph Beal came back to this State, and clandestinely, or by collusion with Whitaker, obtained possession of his bond for title, and destroyed it. He also alleges that both Ijames and the defendant Smith had full notice of his equity; and that Whitaker not only had an equity to the one hundred acres devised to Joseph Beal, but also to two undivided shares of the rest of the tract, and that having purchased Whitaker’s interest and estate in the whole tract, and Whitaker being entitled to one share in right of his wife, and one other share under a deed from one Davis and wife, who is a *285daughter of Joseph Beal, Sen., he is entitled, besides the one hundred acres, to two undivided shares of the rest of the land. The plaintiff also alleges that in drawing the deed of trust from Whitaker to Anderson, the word *“*heirs ” was omitted by a mistake of the draftsman. The prayer is that this mistake be corrected, and that there be a partition of the land, and an account of the profits since the plaintiff was evicted.

There was judgment pro *confesso*as to the defendants Whitaker and Beal. The other defendant, Smith, admits that Beal executed the title bond to Whitaker, and says he is informed that it, was used by one of Whitaker’s daughters in making pasteboard for a bonnet — not being considered of much value, as Whitaker had never paid Beal for the land. And he insists that he isa purchaser for valuable consideration, and without any such knowledge of the plaintiff’s claim as would affect him in equity.

The plaintiff replied to the answer, and the parties proceeded to take proofs - after which the cause was set for hearing, and by consent of parties, transmitted to the Supreme Court for hearing.

Mitchell, for the plaintiff.

*Craige,*for the defendants.

PeaRsoN, J.

In regard to the question made on account of the omission of the word “ heirs ” in the deed of trust, we are entirely satisfied from the context, and from the nature and purposes of the deed, that it was the intention of Whitaker to convey a fee simple, and the omission was an oversight. Consequently, the plaintiff' has a plain equity to have the mistake corrected.

We are satisfied from the evidence, and Whitaker’s possession and the lapse of time, that the purchase money had been paid by him to Beal, for the one hundred acres *;*and we are also satisfied that both Ijames and the defendant, Smith, had notice of the plaintiff’s claim. Consequently, the plaintiff has a plain equity to consider the defendant Smith as holding the legal title of the one hundred acres in trust for him, and is entitled to a decree for partition, so as to assign to him the one hundred acres devised to Joseph Beal, Jr., which is to be so laid off as not to include the *286Meeting House ; for the exception in the devise, directing *11*the rest of the land ” to be sold, after the death of the wife, shows that the Meeting House lot was not included in the one hundred acres.

In regard to the share of Davis and wife, there is no proof that Whitaker ever bought it. In regard to the share of Whitaker’s wife, if the deed of trust contained words sufficient to pass it, an interesting question might be presented, which is still open in our Courts. We have refused to adopt the English doctrines, *cy pres*— equity of the wife to have a settlement — part performance of parol contracts as to land — the lien of the vendor against the purchaser from the vendee for the purchase money. Is the doctrine that a purchaser from a trustee, with power to sell, *must see to the application of the purchase money,*to be adopted ? or is it to be rejected upon the ground, that it stands on the same principle as the lien of the vendor for the purchase money ? This, we say, is an open question, and we are not now at liberty to decide it, because the deed of trust purports to convey the two hundred acres of land, and there are no words sufficient to pass the right of Whitaker and wife to a share of the purchase money of the part of the land, which the executor is directed to sell.

There must be a decree, declaring the plaintiff is entitled to have the one hundred acres of land devised to Joseph Beal, Jr., laid off and conveyed to him by the defendant, Smith — the deed to be approved by the Master; and to an account of the profits since the plaintiff was evicted. And the defendants must pay the costs.

Per Curiam. Decree accordingly.