37 N.C. 121 | N.C. | 1842
The bill was filed in November, 1839, and the object of it is to obtain a conveyance of four tracts of land adjoining each other, situated in the counties of Rutherford and Lincoln, and containing in the whole 740 3/4 acres, which the plaintiffs claim as the heirs at law of James Rutherford, deceased. It sufficiently appears in the pleadings and proofs that James Rutherford died, in November, 1819, without having been married, and leaving brothers and sisters, natives and residents of Scotland and subjects of the King of Great Britain, and also leaving Walter B. Rutherford, a son of Alexander Rutherford, one of the said brothers of the said James, which said Walter B. was also a native of Scotland, and came into this State and married here in the year 1816, and has ever since resided here without being naturalized; and that the plaintiffs are the issue of the said Walter B. Rutherford, born in this State, of his said marriage.
The bill states that in 1818, James Rutherford, for a price paid, purchased the land in question from Joseph Weir, (123) who was then seized of it, as described in the bill and in a plat of survey thereto annexed, and that Weir then executed a penal bond for a large sum of money, with condition to be void on the conveyance of the land in fee simple by Weir to Rutherford, or his heirs, on request; that one Hogg became the administrator of the intestate James in 1823, and came into possession of his papers, and, among them, of the bond or articles in question, and that upon some agreement or combination between Hogg and Weir the former delivered the bond to the latter, from whom it has not been since obtained and by whom it was probably destroyed.
The bill then states that Joseph Weir died in 1828, leaving a widow and several children, who are made defendants in this suit, and also that Joseph Green, another defendant, is in possession of and claims a part of the land purchased by James Rutherford, but that if he has a sufficient conveyance for the same, he took it with notice of J. Rutherford's previous purchase, and cannot hold against the plaintiffs. The prayer is for a discovery *89 and production of the bond or articles, and for proper conveyances of the legal title from the defendants for the parts of the land, of which the title is in them respectively, and for general relief.
The widow and heirs of Weir answered together, and the defendant Green separately. Neither answer admits the bond from Weir to Rutherford, nor any knowledge, if there was such an one, that it covered the land in dispute. That of the Weirs states that, as they understood and believe, Hogg, as administrator of James Rutherford, instituted an action of debt against Joseph Weir on some bond, and that a compromise was made between them, on which Weir paid the costs and made satisfaction to Hogg for the contract and took it up; and they suppose that may have been the instrument on which this bill is founded, though of that they have no knowledge or information. Those defendants further say that they have not been in possession or enjoyment of any of the land claimed by the plaintiffs since the death of Joseph Weir, and they do not admit that the plaintiffs are the heirs at law of James Rutherford.
The answer of Joseph Green admits the plaintiffs to be Rutherford's deed heirs, as alleged by them, and that he was (124) seized of 640 acres of the land described in the bill and lying in Lincoln, which he claims in the following manner: He says that Joseph Weir entered into a recognizance which bound these lands to the State, upon which judgment was rendered, and the lands sold by the sheriff on an execution thereon issued, and were purchased by one Samuel Green, who took a sheriff's deed, and afterwards conveyed to this defendant, Joseph Green.
Both the answers further state that before the conveyance from Samuel to Joseph Green the plaintiffs filed a bill upon the same subject-matter against Samuel Green and the present defendants, the Weirs, in which there was a decree in favor of the defendants to that suit dismissing the bill; and they pray the benefit thereof as a bar to the present bill.
It may be as well to dispose of this last point at once by mentioning that the defendants have failed to establish it by offering any former decree in evidence. The truth is, the answers are mistaken on that point, as we happen to remember that the former suit alluded to was transferred to this Court for hearing, and that when it should have been heard, the counsel for the plaintiffs found that for some defect of proof he could not sustain the bill, and asked leave to dismiss it before the hearing, without prejudice, which was accordingly granted; and then, it seems, the present suit was brought. Clearly, if the former proceedings were before us, there is nothing in them that could *90 present an obstacle to the present bill; but as they have not been read, it is sufficient to declare that the defendants have failed to establish the fact stated in that part of their answers.
Upon the question of the right of the plaintiffs to inherit from James Rutherford, which is made in the answer of the Weirs, the Court entertains no doubt. The facts are clear that they are the nearest relations of the deceased, who are citizens of the United States, and that their father and all the brothers and sisters of the deceased are aliens. The matter of law is equally clear, as it was long ago decided in an ejectment brought upon the demises of the present plaintiffs. Rutherford v. Wolf,
A question might have been made between the plaintiffs themselves whether some of them can claim parts of the land as being coheirs with the other plaintiffs. All of them are eight in number, so that it is probable some of them might not have been born before the act of 1823, ch. 1210, went into operation; and as to those born after, a plausible objection might be raised that they were not heirs. But we think there would not be much difficulty in the point, had the facts been stated to raise it. Before the act, all the brothers and sisters, although some of them were posthumous, would be admitted, as they came into life, to inherit. Cutlarv. Cutlar,
Three witnesses establish the existence of the bond from Joseph Weir to James Rutherford very clearly. One of them — *91
Francis Alexander — states that at the request of those parties he surveyed the lands which by the bonds Weir obliged himself to convey to Rutheford [Rutherford], and he identifies it by annexing the plan of survey to his deposition, which survey he says was made before the bond was executed, but with a view to it. (126) This witness further proves that after the death of Rutherford, Hogg, as his administrator, brought an action against Weir on the bond, and that after it had pended some time, Weir paid to Hogg, in bonds on other persons, the value they set on the lands, and Weir took his bond up and probably destroyed it. Under such circumstances we cannot hesitate to declare that there was a valid agreement in writing, whereby Weir was compellable in this Court to convey the lands described by the witness to Rutherford and that it remains in full force. It is true, the plaintiffs do not give precise evidence of a particular price paid, or other valuable consideration moving from Rutherford. But it is sufficiently shown that there were pecuniary transactions between those persons, in the course of which a treaty for this purchase arose; and when this covenant or obligation was subsequently given, the inference is a natural one from the course of dealing that it was founded on an adequate consideration, which inference is to be deemed the stronger against Weir, from the fact that he unjustly, as against these plaintiffs, possessed himself of that instrument so as to deprive them of the power of using the instrument itself as evidence of the consideration which Rutherford had given. Henderson v.Hoke,
It was faintly, indeed, contended on the hearing that this obligation was a personal contract and that the administrator could maintain an action on it, and that therefore the payment to Hogg and canceling the instrument was a discharge of it. In the first place, it may be questioned whether the personal representative could have an action on the bond. Shep. Touch., 171;Thrower v. McEntire,
Another objection taken by the defendant Green is that he is entitled to the protection given to a purchaser without notice. This is founded on the evidence of Samuel Green, under a conveyance from whom this defendant derives title. He states that he became the purchaser of the land at a sale made by the Sheriff of Lincoln on the execution in favor of the State against Joseph Weir, as set forth in the answers, and that at the time he purchased he paid the purchase money and took a conveyance from the sheriff. He had no knowledge whatever of any claim but Weir's to any part of the land. If this were true, and if also it formed a defense to the bill, in point of law, we could not act on it in this case, since it is not relied on or in any manner brought forward or hinted at in the answer, and the deposition, being to a matter not in the issue in the cause, cannot be regarded. But if the answer had stated the point in the most formal manner, it would have been ineffectual, inasmuch as we hold that a purchase at a sheriff's sale, like every other assignment by act of law, only transfers the interest of the debtor, whatever it may be, and in the state it is in, subject to all equitable as well as legal demands of other persons. Dudleyv. Cole,
The plaintiffs are therefore entitled to the decree establishing the agreement, and that the defendants severally convey to them the parts of the land of which they are respectively seized. What those parts are we do not clearly perceive upon the pleadings or plat. It is stated that the defendant Green purchased all that part of the land which lies in Lincoln County, and that it contains 640 acres; but the part thus claimed by him is not distinguished, either by laying down on the plat the line between the counties or otherwise, and hence an inquiry on (128) that point must be made. The costs of the inquiry and also all other costs, as between the plaintiffs and the defendant Green, must be paid by him; but as against the other defendants, the heirs and widow of Weir, the plaintiff does not recover costs.
We must not omit to notice that the defendant Green states in his answer that before the commencement of this suit he had sold to different persons more than four hundred acres of the land. He has not, however, specified the parts or persons, nor on the hearing offered evidence of such sales, much less of conveyances, and therefore we cannot proceed upon the supposition of the existence of them. If the fact be as stated, it will be for *93 the plaintiffs to take their remedy, as they may be advised, either by adopting the sales and receiving the price from the defendant, or by bringing in the purchasers and claiming the land.
The plaintiffs declared entitled to recover, and inquiry ordered.
PER CURIAM.
Cited: Vannoy v. Martin,
(129)
