58 N.C. 119 | N.C. | 1859
In 1838, the plaintiffs, as the heirs at law of John Adderton, filed a petition in the court of equity of Davidson for the sale of his real estate consisting of various tracts; amongst others, one is described as themountain tract of about 100 acres. The petition was heard and an order made at Spring Term, 1838, of the said court for the sale of the lands mentioned in the petition. The clerk and master in equity at the ensuing Fall term of the court reported that he had made sale of the lands mentioned in the petition to the "following persons," setting out the various tracts sold and the purchasers' names and the prices, amongst others, as follows: "Mountain tract — Beverly Surratt, $27." At this term a decree was passed setting aside the sale of a tract sold, called the Crump tract, and a release ordered and confirming the report of the clerk and master "as to the sale of all the other tracts of land mentioned in the pleadings." The bond taken by the master and returned with the report, in its conclusion, has this phrase: "It being for the purchase money for 40 acres of land sold as the property of John Adderton's heirs in order to make distribution among his heirs at law."
The Mountain tract aforesaid consisted of two parcels — one of 40 acres, which had been entered and granted by the State, and the other of 57 acres, bought of one Russell, adjoining each other. When the land was offered by the master, the defendant made known publicly that his deed covered the portion of 57 acres, and warned the bystanders against purchasing it. The master, on consultation with a friend conversant with such matters, proceeded to sell, and the defendant purchased whatever was sold as the Mountain tract. The plaintiffs (120) say that only the 40 acres was bid off, and only that number of acres was paid for. The defendant says, on the other hand, that, finding the land going low, he concluded to buy in the Russell portion of the *106 Mountain tract as well as the other, so as to quiet his title to the 57 acres, and that he distinctly did so. In 1850 a motion was made in the court of equity of Davidson, praying that the case of the petition for the sale of the lands of John Adderton pending in 1838 might be brought forward, and on its being done, the defendant's counsel moved that the then clerk and master, on being satisfied that the purchase money had been paid to his predecessor, should make title to the defendant for the "Mountain tract of land mentioned in the petition," which order was accordingly made, and the deed made accordingly for the whole 97 acres. Previously to this the plaintiffs had brought an action of ejectment at law against the defendant for the 57 acres, which they alleged had not been sold, and finding, during the pendency of the suit, that the defendant had got the legal title from the clerk and master, they filed this bill to restrain him from setting it up in the trial of the said action, and praying that the deed thus obtained should be set aside upon the ground of fraud, and that it should be surrendered for cancellation and the defendant be allowed to take one only for the 40 acres which he had bought. The proofs in the case are contradictory, and from the view taken by the court unnecessary to be stated here. This is a bill filed by certain persons who represent themselves to be the heirs of John Adderton, and who state that about the year 1838 they obtained from the court of equity of Davidson a decree for the sale of the lands theretofore belonging to John Adderton, (121) consisting of various parcels; that only a portion of a certain parcel called the Mountain tract was sold, and they complain that Beverly Surratt, who bought that part by fraud and management, had it reported as a sale generally of the Mountain tract; and afterwards, in 1850, procured, through an order of the court, a deed for the whole tract, and they pray that this deed may be revoked and canceled and a deed for the part only that was sold executed.
The facts appear to be that the Mountain tract was separated from the other lands of the deceased. It originally consisted of two parcels — 40 acres acquired by purchase from Russell and 57 by grant from the State. They were adjoining each other, situated in the mountain district of the county, and designated, together, as the Mountain tract. In the petition for the sale it is set out as the Mountain tract of about 100 acres. It is reported by the master as sold to the defendant. The sales were confirmed by the court, except as to the Crump tract, which was resold, and afterwards, in 1850, upon proof of the payment of the *107 purchase money, the court of Davidson directed a title to be made. In the note given to the master by the defendant it is stated to be for 40 acres of land, and the evidence of witnesses present at the sale as to what was sold is conflicting.
Upon the merits of this controversy, we think the case is with the defendant. The conflicting evidence afforded by the contents of the note on the one hand and the report of the master on the other, and by the contradictory recollections of the bystanders, might leave the matter in doubt. But when you add the considerations that no attempt was made to resell the part alleged to have been left and no charge taken of it from that day to the time this dispute arose, and that it alone remained unsold of all the lands of the deceased, the conclusion is irresistible that it must have been considered by all parties as sold under the decree.
It seems to us the equity of the bill is overturned by force alone of the record of proceedings in 1838 upon the petition for the sale. It is "ordered that the Mountain tract of about 100 acres" be (122) sold. The master reports that he had sold the "Mountain tract" without qualification, and the sale is confirmed. Until that time the petitioners had a day in court to object and to rectify. After that the contract of sale is complete and valid.
The title follows the payment of the purchase money as a matter of course, the previous orders standing unreversed.
The equity of the bill, in any view of it, is unsustained by the proofs, and the bill must be dismissed with costs.
PER CURIAM. Bill dismissed.
