Canoy v. Troutman

• Decision Date: 31 December 1846
• Citation: 7 Ired. 155,29 N.C. 155
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF JACOB CANOY v. HENRY TROUTMAN.

7 Ired. 155

29 N.C. 155

DEN ON DEMISE OF JACOB CANOY

v.HENRY TROUTMAN.

Supreme Court of North Carolina.

December Term, 1846.

A fraud in the consideration or treaty, on which a deed is obtained, is a ground for impeaching it in equity, but it does not avoid it at law. To have that effect, it is necessary the execution of the deed should be obtained by fraud, so as to make a case for the defendants on the plea of non est factum.

When land is conveyed in fee to a person, under certain trusts mentioned in the deed, the trustee can convey a legal title to the property, so as to enable the alienee to maintain an action of ejectment. The question, as to his equitable right to convey, for a different purpose than that authorized by the trust, is one of purely equitable jurisdiction, and cannot be entertained in a Court of Law.

The cases of Logan v. Simmons, 1 Dev. & Bat. 13, and Reed v. Moore, 3 Ired. 310, cited and approved.

Appeal from the Superior Court of Law of Cabarrus County, at the Spring Term, 1846, his Honor Judge CALDWELL presiding.

Upon the trial of this ejectment, the plaintiff, in order to shew a title in his lessor, read in evidence a deed for the premises mentioned in the declaration, which was made by the defendant to one Jacob Troutman on the 4th of May, 1843. It purports, that the defendant, “Henry Troutman, in consideration of the sum of one dollar, to him in hand paid by the said Jacob Troutman, the receipt whereof is hereby acknowledged, hath bargained and sold and by these presents doth bargain and sell unto the said Jacob, his heirs and assigns, that certain parcel of land lying &c. to have and to hold to the proper use and behoof of the said Jacob, his heirs and assigns forever: In trust however, and to the intent and purpose, that the said Jacob hath entered surety for said Henry on a judgment obtained against him by Conrad Casper, before a Justice of the Peace for an appeal to the County Court of Cabarrus County: and if the said suit be decided in Court and the said Henry Troutman shall be cast and made liable for the costs and shall fail to pay them within two months thereafter, then, and in that case the said Jacob is to enter into the premises, and take possession and expose the said lands to public sale on the premises for cash, after giving twenty days notice, and out of the money arising from the sale of such land, shall pay all the costs and charges of the aforesaid suit, and the residue of such money, if any, shall pay to the said Henry or his assigns.” The plaintiff further proved a sale made by Jacob Troutman on the premises, to the highest bidder, and that the lessor of the plaintiff became the purchaser at a fair price, and received a conveyance from Jacob Troutman.

The defendant then, in order to impeach the foregoing title, proved that in April 1843, Conrad Casper obtained a judgment against him before a Justice of the Peace for $50; and that he prayed an appeal therefrom and obtained leave to give security therefor within ten days: that he applied to Jacob Troutman to be his surety for the appeal, and proposed to give him, when requested, a deed of trust for his land as an indemnity; and that said Jacob assented thereto, and agreed that he would go to the Justice, and become the surety accordingly: that within the ten days, the said Jacob went to the Justice, in the absence of the defendant, and offered himself as surety for a stay of execution; and that the lessor of the plaintiff, being then present, remarked to the said Jacob, that the defendant did not want a stay of execution, but wanted an appeal; and that, nevertheless, the said Jacob persisted in becoming surety for the stay of execution, instead of an appeal: that, within a few days thereafter, Jacob Troutman applied to the defendant to give him the deed of trust, as he had...