Den on Demise of McKerall v. Cheek
| Decision Date | 30 June 1823 |
| Citation | 9 N.C. 343 |
| Court | North Carolina Supreme Court |
| Parties | DEN ON DEMISE OF McKERALL v. CHEEK, TENANT IN POSSESSION, AND KIRKLAND, LANDLORD.—From Orange. |
A sheriff's deed for 300 acres of land was offered in evidence. It was proved that the sheriff intended to convey but 125 acres; that he was ignorant of the courses of the land, and that he would not have signed the deed if the courses had not been inserted in such way as to deceive him with respect to the quantity. The court below held the deed to be conclusive; this Court grants a new trial because the judge should have left it to the jury to say whether the deed was fairly or fraudulently obtained, for a court of law has cognizance of the question as well as a court of equity.
EJECTMENT. The lessor of the plaintiff, to support his title, produced a grant from the State for the land in dispute (A, B, C, D, E, F, G, H, I, K, L,) to Robert Cheek, the elder, bearing date 13 March, 1780; a judgment in Orange County court, obtained August Term, 1817, against Robert Cheek, the elder, and
execution thereon; a judgment in Orange Superior Court, at September Term, 1817, against Robert Cheek, the elder, and execution on it, and the sheriff's deed to himself, dated 27 February, 1818, describing the land by the boundaries of the original patent and purporting to convey 125 acres of land.
The defendant admitted himself to be in possession of all the lands except those included in the lines C, D, E, M; of that part the plaintiff was in possession.
The defendant produced a judgment in Orange court against James Cheek, and an execution under which the lands A, B, C, M, I, K, L, had been levied on and sold by the sheriff to William Kirkland, by deed dated in August, 1820.
He showed also another judgment against Robert Cheek, theelder, at March Term, 1818, of Orange Superior Court, an execution thereon and a sale by the sheriff to William Kirkland of the lands A, B, C, M, E, F, G, H, I, K, L, as the lands of Robert Cheek, the elder, on 7 August, 1820.
The defendant then called witnesses to prove that, more than 30 years before, James Cheek had purchased from Robert Cheek, the elder, the tract A, B, C, M, I, K, L, paid him for it, entered into possession, had it surveyed, the line C, M, I, marked between them, and that James had ever since lived on it and occupied it exclusively as his own. The court rejected the evidence of any agreement between Robert and James
whereby James became the purchaser, unless the land was actually conveyed by deed, upon the ground that such evidence would not show the legal title to be out of the plaintiff, which alone could be regarded in this action.
The defendant then alleged that the three pieces of land in the plat were separate and distinct from each other, and that McKerall had only purchased C, D, E, M; and to prove this point he called several witnesses, from whose testimony it appeared that the portions of land described in the diagram as James' and Robert's land were sold to them respectively many years ago by their father, old Robert Cheek; that no deeds were...
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