Opinion
June Term, 1820.
(IN EQUITY.)
1. I. made a deed to S. for land, which was destroyed before registration by a combination of I. and S. to defraud a creditor of S., and afterwards, but before the act of 1812, c. 4, the land was sold under an execution against S., who was present at the sale and declared the land was his and urged P. to buy it, who accordingly did purchase it.
2. Quere, Did the legal title of the land pass by the sheriff's sale? Held, that it was unnecessary to decide that here, because P. had no means of showing it at law as the deed was destroyed, and that gave him the right to resort to equity. Held also, that he might do so after an ineffectual attempt to defend himself at law against I. Held, also, that if S. was only the equitable owner, his conduct at the sale would constitute P. his assignee in equity and authorize him to call for the legal title.
3. Infants who prosecute an unjust claim at law and thus compel the defendant there to come into equity for an injunction and relief, and who here again set up an inequitable defense, shall pay costs.
FROM HALIFAX. The bill stated that one Crawley, being seized in fee of the land in dispute, bargained, in 1805, with the defendant Sykes for the sale thereof, at a stipulated price, which was secured by the bonds of Sykes and one Hawkins as his surety, and also by retaining the title of the land; that he gave Sykes a bond to make him a deed when the purchase-money should be paid; that Sykes paid a part, and that in 1808 Crawley obtained against him and Hawkins a judgment for the residue of the purchase-money; that execution was issued and the land was sold, when Rhodam Isles became the purchaser, at a small sum, and took a sheriff's deed, and Hawkins paid the balance; that the purchase of Isles was fraudulent; for Sykes, in fact, furnished the money secretly, and also transferred to Isles the bond given by Crawley for the title, who then, by the consent of Sykes, made a deed to Isles; that Sykes continued in possession, sold part of the land to one Gammon and received the purchase-money, though Isles made the deed; and that finally, in (88) 1809, Isles secretly conveyed by deed the balance of the land to Sykes, except thirty acres which adjoined Isles' own land and which he proposed to pay Sykes for and keep; that Sykes being still indebted to Hawkins, and wishing to delay the payment or defeat the debt, it was afterwards agreed between him and Isles that the deed should be burnt, and that Isles should convey again at some future period, and the deed was accordingly destroyed; that Hawkins sued Sykes in 1811 for the money which he had paid as his surety, as aforesaid, and obtained judgment, on which execution issued, and was levied on the residue of the land, viz., sixty acres, described in the bill by metes and bounds, and including the thirty acres which Isles had wished to keep, and the same was purchased by the complainant, who took a deed from the sheriff therefor, and immediately actually entered into the land by the permission of Sykes, who was present at the sale, and urged complainant to purchase, expressing much anxiety that it should bring enough to satisfy Hawkins, and declaring that Isles (who was then lately dead) had never paid anything for the land and had no just claim to it, but held it in trust for him; that Mary Isles, the widow, and Lenoir Isles and the other defendants (some of whom were infants), heirs at law of Rhodom Isles, brought ejectment against complainant, and recovered, because the court of law refused to hear evidence of the foregoing facts, inasmuch as they would not constitute a legal title, by reason of the deed from Crawley to Isles, and the destruction of that from Isles to Sykes. The bill then contained a prayer for an injunction, that Sykes and Isles should convey to complainant and that he should be quieted in possession.
Upon the filing of the bill, the injunction was issued.
Sykes did not answer, and the bill was taken pro confesso against him.
The answer of the other defendants admitted the (89) contract between Crawley and Sykes, the bonds for the purchase-money and that for the title, and that Isles had purchased under the judgment and execution charged in the bill, and stated that Isles doubted whether the sheriff's deed was a good title, and, therefore, by Sykes' consent, he took a deed from Crawley. It wholly denied that Sykes furnished any part of the purchase-money, or that the purchase was in trust for him. It insisted, also, that Isles took possession and held it during his life, and that, although Sykes occupied a part of the land, he paid rent. It denied that Isles made any secret or other deed to Sykes, or ever agreed to do so. It admitted that a part of the land was sold to Gammon; but they say that Isles sold it, made the deed, received the consideration, and held it to his own use. The defendants also insist that Sykes had fraudulently surrendered the possession which he held under them to the complainant.
Upon the coming in of this answer, the injunction was dissolved, and the defendants, lessors of the plaintiff at law, were put into possession under a writ of possession. But the cause was continued, as upon an original bill; and, the testimony being completed, in numerous depositions, the case was sent to this Court for trial.
It was much debated upon the facts by Gaston for complainant and by Seawell and Mordecai for the defendants, Isles, before the jury, to whom issues were submitted. The jury, however, found that the purchase by Isles was made with Sykes' money and in trust for him; that Isles afterwards made a deed to Sykes, which was destroyed, as charged in the bill, and that complainant bought at the sheriff's sale by the consent of Sykes, who then represented that the land belonged to him.
Upon this state of the case, Mordecai moved to dismiss the bill. If the complainant purchased a legal title, he might have availed himself of it at law; if Sykes' title be an equitable (90) one, then it did not pass; because the sale was before the act of 1812 (ch. 4). The legal estate did pass; and, therefore, the bill must be dismissed. If the deed from Isles to Sykes was registered, it is clear that it conveyed the land. If it was not registered, which probably we must now consider to be the case (as the contrary is neither charged nor found), the question arises whether registration is necessary to pass the title to lands.
I am informed that Chief Justice Marshall, in Hamilton v. Sims, in the Circuit Court for the North Carolina District, decided that registration is only necessary for the purpose of notice, but that between the parties the deed takes effect by delivery and is valid without registration. In conformity with this, Judge Hall decided a case on the circuit at Northampton. The cases of bills of sales of slaves, upon the act of 1789 (ch. 59), are in point. The act declares, unless they be proved and recorded, they shall be void; but as it was apparent that the ceremony of recording was only to give notoriety to sales of slaves, sales were held good between the parties without it. So the words of Stat. 1715, ch. 38, are: "That no conveyance of lands shall be good and available in law unless they be acknowledged or proved and registered." There can be no reason why these expressions, of the same import and enforced by the same sanctions, should receive a different interpretation.
The title did not revert to Isles by the destruction of the deed. The right to a thing which lies merely in grant is destroyed by the destruction of the grant; but when the thing exists independent of the deed, and the deed is but evidence of it, the destruction of the deed does not affect the thing which is the subject of it. Gilb. L. Ev., 95. The plaintiff ought, therefore, to have defended himself at law. If he could not do it effectually, he should have applied to equity for relief, pending the suit. He cannot take both chances — first at law, and, if that fail him, then come into this Court. 1 Dick. Rep., 287, 313. (91) He, however, does not allege that there was any obstacle at law, except that the judge rejected his evidence. If the judge did right, he has no cause of complaint; if wrong, it is not for a court of equity to correct the error.
If Sykes had only an equity, the writ of fi. fa. could not reach it. The creditor ought to have taken out his execution and then applied to equity against the debtor and the holder of the equitable fund for satisfaction. The necessity for this arises from the inefficacy of the execution. Then nothing passed by the sale, in this point of view.
The jury have found that Price purchased by the assent of Sykes, who encouraged him to buy. But the bill does not allege that he bought from Sykes nor from the sheriff as his agent, but it states that the sale was upon execution. The sheriff, therefore, acted as the officer of the law, and not as Sykes' agent.
Gaston, on the other side, was stopped by the Court.
The Court having thus intimated an opinion, Seawell contended that if complainant got a decree he could not recover costs. The defendants are heirs at law, having no knowledge of the facts upon which the equity of Sykes and Price rested, and some of them are infants, who are not to blame for the defense set up here or the claim asserted at law for them by their next friends. Infants never pay costs. 3 Atk., 223; 2 N.C. 371.
Whether the complainant had a legal title to the land for which he was sued, it is unnecessary to decide, because he was unable to establish it upon the trial at law, in consequence of the destruction of the deed, which was effected (92) by the fraudulent combination of Sykes and Isles. That gives this Court jurisdiction, and his remedy is properly sought here. With respect to the other thirty acres, Sykes was the equitable owner, and might for a valuable consideration assign his equitable title to Price, who, purchasing bona fide, could compel Isles to convey to him the legal title.
When, therefore, Price became the purchaser at the sheriff's sale, at the request of Sykes, and after his declaration that the land belonged to him, he stood upon the ground of an assignee, and is well entitled to a deed.
With respect to the costs, they ought to be paid by the defendants, since they prosecuted an unjust claim at law, and have set up an inequitable defense in this Court. In such case the infancy of the defendants forms no excuse.
The Court consisted of the Chief Justice, Hall and Murphey, and the decree was that the defendants, who were of full age, should immediately execute a conveyance to complainant for the whole tract of sixty acres, with covenants of title as against themselves and those claiming under them; that the infant defendants should, within one year after full age, execute similar conveyances, respectively; that complainant should forthwith be let into possession and be quieted therein, and an account of rents and profits was ordered, and that defendants should pay all costs at law and in equity, reserving to the infants six months after full age and service of the decree to show cause against it.
Cited: Morris v. Ford, 17 N.C. 418; Hardin v. Barrett, 51 N.C. 162; Vestal v. Sloan, 83 N.C. 557; Ray v. Wilcoxon, 107 N.C. 523; Arrington v. Arrington, 114 N.C. 171; Patterson v. Ramsey, 136 N.C. 566; Dew v. Pyke, 145 N.C. 305.
(93)