17 N.C. 412 | N.C. | 1833
The defendant Elizabeth alone answered. In her answer she admitted that Zebulon Ford devised the land to her son John; that John (414) conveyed the same to her, and that in pursuance of an award she conveyed the same to Reuben and William. She alleged that, according to the award, she was to have the dwelling-house and one acre of the land during her life; that there was to be no partition of the land between her sons Reuben and William, nor was either to sell his moiety during her life; that they were to work the land jointly, and during her life pay her annually 27 bushels of corn and 8 bushels of wheat; that Reuben failed to perform his part of this award, furnished her with neither corn nor wheat, left the place, sold his part to Robert Catlett, and gave a bond to make title; that in consequence of this breach of the award on the part of Reuben, she required him to return the deed; that this was done accordingly, and the deed, with the consent of Reuben and William, was destroyed. She disclaimed all knowledge of any contract between the plaintiff and Reuben, admitted that the plaintiff did purchase under an execution a moiety of this land as the property of Reuben, but averred that at the time of such purchase he had full knowledge of the terms upon which Reuben had held the lands, and also of the destruction of the deed. She further alleged that on 18 May, 1814, after the purchase by the plaintiff at sheriff's sale, certain articles of agreement were executed by the plaintiff, herself, and the defendant John, which she sets forth in haecverba, and which are, that she agrees to sell off all her lands by 25 December then next ensuing, on the plaintiff's giving up his right to the claim of Reuben Ford; that if she made sale *333 before that time the plaintiff would give up his right to the claim of the defendant Reuben; that if she did not sell before 10 December, she should choose men to value the land or a part thereof and the plaintiff would make payment agreeably to their valuation, and that she should move off the land before 20 December and not return to the same; and that either of the parties violating these articles should forfeit $500. She then averred that in execution of this agreement she sold the land to William Ford in fee simple, who now held the same, and that she moved off before the appointed day, but afterwards she moved back to it and resided there with William until he moved away and rented it (415) to his brother John.
The other defendants have not answered, and a judgment pro confesso has been taken against them. The plaintiff replied generally to the answer of the defendant Elizabeth, and the cause, as between them, now comes on to be heard on the pleadings and proofs.
The proofs filed were very voluminous, and those necessary to a correct view of the case will be found stated in the opinion. The plaintiff exhibits what he insists was the award, and proves its execution by Philemon Morris, one of the subscribing witnesses. It bears date 11 November, 1811, and in relation to the matters connected with this controversy, it awards that Elizabeth Ford shall make a deed to Reuben and William Ford for the land on which she lives, and that Reuben and William shall deliver to her 27 bushels of corn and 8 bushels of wheat annually, and give her the house in which she lives and one acre of land adjoining, during her life. The defendant exhibits another instrument executed many months afterwards, by three of the four arbitrators, but dated the same day, which she alleges was made on purpose to supply an omission unintentionally left in the former instrument, and which she insists contains the true award. This differs from the other solely in this, that it contains a clause in these words, "owing to the smallness of the tract of land, we do allow that no division take place between Reuben and William Ford, but each to work and to clear wherever they think proper, and that none of them sell without the approbation of the other." It is unnecessary to examine which of these contains the definitive award, as it is proved by the testimony of Dulin, and this proof is confirmed by the testimony of others, that the contract of Reuben, by which he sold his moiety to William (416) and James Morris, was made in the presence and with the approbation of William Ford. *334
The plaintiff does not exhibit the bond which he charges to have been executed by Reuben Ford and Robert Catlett, conditioned for the making title to the plaintiff and James Morris of the said Reuben's moiety in the land, although he gives parol proof of a sale and payment of the purchase money and of the execution of a bond for the title, but he exhibits a record, from which it appears that a judgment was obtained by the said plaintiff and James Morris against the said Reuben and Robert for £ 87 0.8 at May Term, 1813, of Mecklenburg Superior Court, and that a fieri facias issued thereon, and exhibits also a sheriff's deed purporting to have been executed in consequence of a sale made upon thatfieri facias on 2 March, 1814, and purporting to convey to the plaintiff the undivided moiety aforesaid of the said Reuben. The plaintiff further exhibits the will of Zebulon Ford, devising the whole of this tract to his son John, and devising to his wife, Eliza, both the mansion house in which she lives and her maintenance off the plantation during her life. It does not appear from the proofs whether this house and plantation were on the tract devised to Reuben or not. The plaintiff proves by Philemon Morris that a few days after the award John Ford and the defendant Elizabeth did execute a deed for the tract of land pursuant to the award, which deed was witnessed by himself and James Morris; and also proves by Daniel Fox, John Wilson, and Sugar Dulin that there was such a deed. Isaac Alexander, the clerk of the court, testifies that this deed was proved in court, and before it was registered the defendant Elizabeth applied to him for it; that he declined to deliver it to her, but that afterwards, on the application of one of her sons, with the permission of the court, he delivered the deed to the son, who made the application, and William Wilson testified that Reuben got the deed (417) from the clerk; that William obtained it from Reuben, stating to Reuben that he had held the deed long enough; that upon the delivery Reuben charged William to take care of it, and called upon Wilson to take notice of this delivery and of the charge accompanying it. The declaration of the defendant Elizabeth produces no testimony to show how she got possession of the deed, when and by whom it was delivered to her, for what cause, under what circumstances, or by whose concurrence it was destroyed, or in any manner to explain the fact of the destruction. The exhibits filed show that on 28 January, 1814, John Ford executed a deed to her for the whole of the land, and that on 27 November, 1815, she executed a deed for the whole of it to the defendant William.
In support of the allegation in the defendant's answer of the specific agreement therein set forth to have been made between herself, John Ford, and the complainant, she offers testimony tending to show that some agreement had been made and a bond executed by the parties to *335 testify and secure the performance of this agreement, but no bond is produced, nor its loss accounted for, nor the terms of the agreement shown. The witnesses who speak of the agreement also represent that one of its conditions was that she should remove from the land and not return to it, and they state that she moved for a few days only and then returned to the land. The defense, therefore, so far as it rests on this allegation, is wholly unsupported.
By the admission of the defendants, then, John, Reuben, and William, and on the proof against the defendant Elizabeth, it clearly appears that a deed was executed by two of the defendants, Elizabeth and John, to the other two defendants, Reuben and William, for the tract of land whereof the plaintiff claims a moiety, which deed was effectual to convey the legal estate therein in every respect except that it wanted the formula of registration; that the plaintiff purchased at execution sale Reuben's moiety of the said tract; that after this deed was proved, but before its registration; that the plaintiff purchased at execution sale Reuben's under this purchase or under the judgment, it was wrongfully (418) destroyed by the defendant Elizabeth, so that the same cannot now be obtained for registration; and that the evidence of Reuben's title to the moiety, conveyed by the sheriff to the complainant, being thus put out of the way, the other defendants, John, Elizabeth, and William, have contrived by a conveyance from John to Elizabeth, and then from Elizabeth to William, to vest the legal or apparently legal title of the whole land in William.
We are of opinion that the plaintiff is entitled to be relieved against the fraudulent contrivances. Had Reuben been the individual injured by them, he would have been redressed on a bill against the other defendants. In Tolar v. Tolar,
The Court does not consider it necessary to inquire whether under the award directing a conveyance to William and Reuben there was a lien on the land for the payment to the defendant Elizabeth of the annual supplies of grain, which were awarded in her favor. Certainly no express charge was created. The conveyance actually made was without condition, and the plaintiff is entitled to be placed in the same plight as if the spoliation had not been committed. If the defendant Elizabeth could set up such a lien, she should have brought it forward, either by an original or a cross bill, instead of alleging it as a pretext for her unjustifiable conduct.
The Court will declare the plaintiff to be tenant in common with the defendant William in the tract of land set forth in the bill, and decree that partition be made thereof. It will also decree that the defendant William shall convey and release to the plaintiff all his interest and estate in the portion which shall be allotted to the plaintiff in the partition; but that the plaintiff shall not during the life of the said Elizabeth, disturb her, or the defendant William, in the enjoyment of the mansion house and one acre of land, to be laid off adjoining thereto; that an account be taken of the rents and profits received from the land since the purchase of the plaintiff, at the sheriff's sale, and by whom the same were received, to a moiety whereof the plaintiff is entitled, and that the plaintiff recover his coat from the defendants, to be taxed by the clerk of the court.
PER CURIAM. Decree accordingly.
Cited: Thomas v. Thomas, 32 N.C. 125; Tyson v. Harrington,
(420)