2 N.C. 106 | Sup. Ct. N.C. | 1794
Lead Opinion
I know of no law by which lands only entered, and not appropriated, and not appropriated by the execution of a grant, can be sold. The enterer has no title or property till his grant is completed.
Counsel for the defendant: Whatever the party himself may sell and dispose of, the sheriff may sell and dispose of for him by execution to satisfy his debts, and by act 1779, ch. 4, sec. 4, it is enacted: "That in case of the death of any person, who heretofore has made an entry of land, or who hereafter shall make an entry, pending the same, or before the making out the grant, his or their heirs or assigns shall have a fee simple in the premises, although the grant shall be made in the name of the decedent." By the word assigns here used it is plainly implied he may sell and dispose of the interest he has acquired by the entry, and that such sale and disposition shall vest a fee in the purchaser upon the event of the grant issuing after the death of the enterer in his name; and *81 if it be true that the sheriff may sell by the authority of an execution all such property or subjects of property as the debtor himself can sell, this clause authorizes the sale of lands which a debtor has entered; and then it follows that the law should protect such sale with as much ease and by the same rules that it protects sales of other subjects of property.
Addendum
Here the plaintiff has a State grant, and it would be of the most dangerous consequences to avoid it by parol testimony. It is true that the act of 1777, ch. 1, sec. 9, says that every right, title, claim, etc., obtained in fraud, elusion, or evasion of (107) the premises of that act shall be deemed void; but the meaning is, it shall be void as to the State, who may proceed to void it by sci. fa. and having a judgment founded on that on record expressly against it — not that it shall be voided upon evidence in an ejectment by an individual citizen. It is true, also, that the act further directs that a party preferring a subsequent claim shall give bond to prosecute the claim with effect, etc., as has been stated at the bar; but as this case is offered to be proven, that would be an act to be done by the defendant, when he found that Reynolds had procured the entry to be transferred in his name. The defendant should then have gone to the office and caused a caveat to be entered, and should have given the bond that the act directs.
It has been argued that the defendant was a purchaser, and that the plaintiff having this grant with an intention to defeat that purchase, it was void under the act against conveyances to defraud purchasers; but that act was intended to void the deeds of private individuals made for such purposes, not deeds granted by the State. The law will not suppose the State concerned with one individual to defraud another; and indeed it is much to be doubted whether an entry can be sold by execution. And if it cannot, then the defendant is not a purchaser within the meaning of that act. There are many things a man himself may sell, which cannot be sold by execution. If the defendant hath a judgment for a sum of money, the sheriff cannot sell it upon a fi. fa., and besides the act cited does not authorize a sale by the enterer. It directs when the grant from the State comes out in the name of the decedent, the assign shall have a fee simple in it. It may mean an assignee in law as a devisee, etc. The act does not say that in all cases the enterer may sell, and that his sale shall be good.
WILLIAMS, J., to the jury: This is so clear a case that the jury need not go a foot from the bar.
Yet they did retire, and after some time found, according to his direction, for the plaintiff. Quere de hoc. *82
Cited: Strother v. Cathey,
