17 N.C. 224 | N.C. | 1832
The defendants, by their answers, admitted that a grant issued in 1786 to Andrew Kerr for 5,000 acres, but averred that it was situated on the Tennessee River, and not on the Mississippi, and they for that reason insisted it could not be the land mentioned in the bill; they denied any trust between the brothers, and any knowledge of an entry by James, or of a grant to him of western land; they admitted the grant of administration and the descents, as charged by the plaintiff, but denied all the other facts charged in the bill, and put her to the proof of them, and relied upon the length of time which had elapsed and upon the statute of limitations.
At a hearing, had in the court of equity for the county of Burke at September Term, 1826, the trust between Andrew and James not having been established, the bill was dismissed as to those of the defendants who were the heirs of the former, and was subsequently prosecuted against the other defendants.
The contract was exhibited and proved, and a deposition taken, which proved the death of Bowman in Georgia, and that the plaintiff was his niece, and only relation, who was a citizen of the United States at his death. Supposing the case to stand upon the original questions of right between the parties, it would not be difficult to give the plaintiff (226) relief to the extent of the purchase money and the interest. It is a contract for lands, of which the original vendor had a right to a specific performance; and although it does not appear that Kerr was ever able to perform it, yet as there is no evidence that either he or Bowman treated it as a broken or incapable of execution, it still continued to be land in this Court, at the death of Bowman. His heir had a right to the land, and if she could not get it, she had the right to the money payable in lieu of it, as against the executor of her ancestor, who made that money land as between his own representatives. It would be the least the defendant could ask, to get clear upon the payment of the purchase money and interest. *185
But the lapse of time excludes all consideration of those rights. The statute of limitation does not protect the defendants. The case does not come within it; the relief going on the vendor's being a trustee, in this Court, for the vendee. But equity itself respects time when the trust is not express, because it is difficult to ascertain the truth of old transactions, and therefore parties capable of acting shall not be allowed to impose that difficulty upon the courts; and because acquiescence for a long period, according to the ordinary experience of the actions of mankind, raises a presumption of performance or satisfaction. Where such a presumption is altogether excluded by the situation of the thing or the parties, the Court must undertake the investigation and get through it as well as we can, however remote the period be to which we are carried back. But it must appear that there is some disability, or other excuse for not sooner bringing forward the claim. The party who wishes to repel the effect of time must furnish the means of doing it.
There is a lapse of thirty-four years here between the making of the contract and the filing of the bill. Surveys were made, and grants issued by this State, for western lands, up to the cession in 1789, in which was reserved to this State the power of still issuing certain other grants; which was exercised for many years. Bowman could, therefore, have filed his bill in a very short time after 1786, for a conveyance, if Kerr had received a grant; or, if not, to compel him to complete (227) his survey and obtain a grant.
It is, however, charged in the bill that he died in the year ____, and left the plaintiff an infant, who married during infancy, and continued covert until within three years and a half before she brought this suit. This allegation is in itself defective, because it fixes the death of the vendee and the marriage of the plaintiff at no certain periods, and it may be that Bowman lived more than twenty years after 1786. If the marriage of the plaintiff could be carried back to her infancy, and that to the death of Bowman, which actually occurred before any reasonable presumption arose, then the objection would be met. The bill does not make that case — and the proof is more defective still than the allegations of the bill. The answers say nothing on the subject. Plaintiffs must not, at the hearing, take the silence of the defendants as admissions. If they want an admission, they must except to the answer, which is not fully responsive, and get a further answer, or a pro confesso upon the very point. The only deposition upon the subject proves the death of Bowman. The witness is asked the time and place of it, and answers as to the latter, that it was in Georgia, but gives no answer as to the former. Nor is there any proof that the plaintiff was an infant at this time, nor at the time of her marriage, nor that she was ever married; *186 but only that she is the heir of Bowman. These may all doubtless be facts, notorious where the parties live; and the events may have occurred at periods which would rebut all presumption from the great length of time. But in the absence of all evidence, the pressure of the presumption must be felt as would direct evidence of the fact of satisfaction. The particular circumstances tend to fortify the general presumption. The lands were in the actual occupation of the Indians, among whom it was so dangerous to go that almost all locations were made by a few persons who acted as general agents. It is highly probable that Kerr knew nothing personally of the land; and from the total failure (228) on each side to trace any entry for land, such as is described in the contract, or in his own name, we might perhaps justly conclude that both parties, discovering that the contract had been entered into under a total mistake, rescinded it, and settled. This would be morally probable if Bowman lived even for a few years. But the Court does not rely on particular presumptions. Our opinion is founded on the staleness of the demand, after thirty-four years, unaccounted for by the death, the infancy, coverture, distress, or ignorance of the several persons respectively entitled under the contract through that period.
PER CURIAM. Declare that the plaintiff has not proved the time of William Bowman's death, nor that it happened while the plaintiff was an infant, nor that the plaintiff married during her infancy, nor that she was ever married; and that the plaintiff hath not accounted for the delay of thirty-four years in filing her bill, after the contract in the pleadings mentioned was made, and that by reason of this delay the demand made by the bill is too stale to be enforced, and performance thereof decreed; and decree that the bill be dismissed, with costs.
Cited: Lewis v. Coxe,
(229)
