3 N.C. 287 | Sup. Ct. N.C. | 1803
But HALL, J., refused the testimony, saying such circumstances, unconnected with possession, were not proper to be received as raising the presumption of a grant.
The trial proceeded, and the defendant offered in evidence a deed signed by the attorney of Henry Eustace McCulloch, which had been delivered to Hughey, who had conveyed to defendant in 1784. This deed had been delivered after the sale by the trustees of the University to the plaintiff. But defendant's counsel offered witnesses to prove the usual practice of Henry Eustace McCulloch to have been, when he contracted for the sale of lands, to receive part of the money and to deliver a deed to the purchaser, and immediately take it back from him, before registration, and to detain it till the residue of the money should be paid. *255 Plaintiff's counsel objected that such testimony, not applying immediately to this deed, ought not to be received. But the Court decided that such evidence might be given as circumstantial proof of the delivery. Plaintiff's counsel then offered to prove that after the date of the deed from McCulloch, Hughey acknowledged he had not paid the purchase money, and that he had no title, as circumstantial evidence to show that in fact no delivery of this deed had ever been made to Hughey. But the Court would not receive this evidence, though the confession was made before the deed of Hughey to Arnold, because if received it would affect a third person, Arnold, the purchaser under Hughey. It was insisted for the plaintiff that such delivery, if believed by the jury, was a delivery upon condition, to be effectual should the money afterwards be paid, which not having been done before the confiscation acts in 1779, that the deed had not passed the title from McCulloch, and, consequently, that the confiscation acts had found the title in him and had transferred it to the State. But the Court said such a delivery was effectual to pass the title from him. Plaintiff's counsel urged that if the delivery was good, still registration was necessary to complete the title of the purchaser, and that had not taken place in 1779, nor was originally (288) intended to take place till the purchase money should be paid. Therefore, the title remained in Henry Eustace McCulloch, and of course was confiscated. The Court said that the deed had lately been registered, having been delivered by the attorney of Henry Eustace McCulloch, who claims the purchaser money; and, when registered, that it had relation back to the time of its first delivery, and passed the title as from that time, and therefore McCulloch was divested of it before 1879. The defendant was in possession in 1779, when the attorney for the trustees conveyed; and the Court said, for that reason a conveyance could not be made before the possession was recovered from him; and that though possibly (which he would not determine) the State might have conveyed, because the State is in possession without entry in all cases where an individual would be by entry, yet the trustees of the University, the grantees of the State, were not entitled to the same privileges.
Verdict and judgment for defendant.
NOTE. — Upon the first point, see Cutlar v. Blackman,
Upon the third point, see contra, Guy v. Hall,
Upon the fifth point, see Haughton v. Rascoe,
And upon the last point, see Blount v. Horniblea, ante, 36. *256
