Burgess v. Lovengood

• Decision Date: 31 August 1856
• Court: North Carolina Supreme Court
• Parties: JOHN BURGESS v. G. W. LOVENGOOD AND OTHERS.

2 Jones Eq. 457

55 N.C. 457

JOHN BURGESS

v.G. W. LOVENGOOD AND OTHERS.

Supreme Court of North Carolina.

August Term, 1856.

If a verdict be obtained in a Court of Law by fraud, circumvention, or perjury, a Court of Equity may decree that the party shall consent to give his adversary a new trial in the same Court of Law.

But allegations that a certificate for a pre-emption right was obtained from the commissioners of Cherokee lands, by perjury, without specifying the particular perjury, and from a mistake by the commissioners, both in respect of the law and facts, are not sufficient to authorise the interference of this Court with the action of the commissioners.

Whether, under the Act of assembly appointing commissioners to settle claims of Cherokee lands, they are not in the nature of arbitrators, and whether, in any instance, this Court could interfere to review their judgment, quære.

CAUSE removed from the Court of Equity of Cherokee County.

The Legislature, at its session of 1850, passed an act entitled “An Act to authorise the sale of refused lands owned by the State, in the Counties of Macon and Cherokee.” The purpose of this act was, among other things, to secure pre-emption rights to first settlers, and to those who had made valuable improvements upon lands occupied by them. By this act the Governor of the State was authorised to appoint, and did appoint, three commissioners, whose duty and office it was, amongst other things, to hear and determine pre-emption claims, and to award certificates to such as might be entitled to such rights. The board of commissioners thus authorised and appointed, shortly afterwards held their session at the town of Murphy, in the County of Cherokee.

The plaintiff, in his bill, alleges, that among other claims, that of the defendant Amos Carden, for the land which is now in controversy, was submitted to the board; that he claimed as the assignee of his brother, the defendant Alfred Carden, who, it was alleged, had made valuable improvements; that he pretended that, when he went off, he left property in the house to enable him to keep the possession, and that he intended to return; that Alfred was a resident of Tennessee, and he professed to have sold to his brother Amos; that these allegations are wholly untrue; that the defendant Alfred had made no such improvement; that all he did towards improvement was to go into an old Indian hut for about two months, put up a few old rails, and plant a small patch of corn on land that had been cleared by the Indians; that he did not go off with the purpose of returning, nor did he leave any article of personal property in the hut to signify such intention, and that there was no evidence as to these allegations except the oath of Alfred Carden, who, in swearing in their support, committed gross perjury; that both the Cardens are now, and have been, generally, citizens of the State of Tennessee; that the board of commissioners were mistaken in their views of the law, and as to the nature of their duties, and were imposed on, and mistaken as to the facts; that the defendant Amos, not having the possession, nor the right of possession, was not entitled to have the certificate issued to him; that the first substantial improvement made on the land in question, was by one Reuben Breeden, who settled on the same, and made permanent and valuable improvements thereon; that, when he went off, his possession was transferred to one Singleton Rhea, to whom he assigned his interest by a written instrument; that S. Rhea assigned in writing to P. M. Rhea; he to Richard Roberts; and he to plaintiff; that these transfers were for valuable considerations, and bona fide; and that possession has been continued from Bredeen down to plaintiff; a period, amounting in all, to about thirteen years; that the plaintiff was unable to show the commissioners how the facts were, his witnesses being partly out of the State, and there was no mode of enforcing their attendance, or of procuring their testimony; that the board of commissioners being thus imposed upon by fraud and perjury, and being thus mistaken in the nature of their duties, under the Act of Assembly, wrongfully and unjustly awarded the certificate to the said Amos Carden, who shortly thereafter sold and assigned the same to the defendant G. W. Lovengood, who assigned the same to the other defendant, his son, Drury Lovengood, to whom a grant for the land has issued; that both these last named defendants had notice of the equity of the plaintiff when they took such assignments. The bill further charges that the grantee, Drury Lovengood, has obtained a verdict and judgment in the Superior Court of Cherokee, and threatens to turn plaintiff out of possession.

The prayer is for an injunction, and for a conveyance; also for general relief.

The answer of the defendants denies the several allegations contained in the plaintiff's bill, and insists that the transaction was really and truly as represented to the commissioners by Alfred Carden; and that the certificate properly issued to his assignee, who sold it bona fide, and without notice of any such equity as set forth, to G. W. Lovengood, who likewise, without any such...