Henderson v. Hoke

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Henderson v. Hoke, 1 Dev. 119, 21 N.C. 119 (N.C. 1835)
• Decision Date: 30 June 1835
• Parties: LAWSON HENDERSON v. JOHN D. HOKE.

1 Dev. & Bat.Eq. 119

21 N.C. 119

LAWSON HENDERSON

v.JOHN D. HOKE.

Supreme Court of North Carolina.

June Term, 1835.

Where A. purchases the land of B. at execution sale, and assigns his bid to C., and it is again sold under an execution against C. and bought by D., and A. conferring with C. to defeat D.'s title, takes a deed from the sheriff, a Court of Equity will compel him to convey to D.

THE original bill charged, that in April, 1826, one Joseph Wier entered into recognizance to the state in a large sum in the Superior Court of Lincoln, which he forfeited in October, 1826: that such proceedings were thereon had, that judgment was rendered in favour of the state; on which execution was sued out and a sale made by the sheriff of Lincoln, on the twenty-second day of October, 1827, of the lands in controversy in this suit, when the plaintiff became the purchaser, and afterwards took the sheriff's deed, dated the twenty-sixth day of November, 1827. The title of Joseph Wier to the lands purchased by the plaintiff, which were distinguished in the pleadings and depositions by the designation of the Home-place, is stated in the bill to the following effect:-- That of a tract containing two hundred and thirty-three acres, part thereof, Joseph Wier was the grantee of the state by patent, dated the 30th of November, 1812: that of nine hundred acres, the residue thereof, Robert Wier was seised in fee, and by deed dated the sixth day of March, 1809, (which was exhibited,) conveyed the same to Joseph, in consideration, as expressed in the deed, of one thousand dollars: that Joseph was the son of Robert, and that the plaintiff was unable to ascertain whether any part of the consideration was paid or not; and that the father and son resided together on the land until 1826, or thereabouts: but that the defendant and one John Wier, hereafter mentioned, alleged that no part of the consideration was paid, and that the deed was voluntary and fraudulent against the creditors of Robert; and was particularly designed to defeat one Robertson, who was then prosecuting a suit against the father, in which he recovered a large sum. This recovery the bill stated to have been satisfied without a sale, leaving Robert still in possession of a valuable property. It was not stated clearly in the bill, whether the plaintiff insisted upon the foregoing conveyance as a valid title in Joseph or not, as against the creditors of the father, and it was rather to be inferred from the whole bill, that he did not. The answer, however, affirmed directly, that it was expressly fraudulent; and the proof by the witnesses was clear, that the payment of the consideration was merely fictitious, being made in the depreciated continental money of the revolution. On the argument, the counsel on both sides admitted that deed to be void, and so treated it as between the parties to this suit. Asa further title in Joseph, which was insisted on as a valid and subsisting one, the bill stated that John Wier obtained a judgment against the said Robert, and sued execution, on which the sheriff, on the 21st of October, 1822, sold the land which had been conveyed by Robert to Joseph, when the defendant became the purchaser at the price of twenty dollars. That this purchase was made in trust and for the use and benefit of Joseph Wier, who paid to the defendant the money advanced by him: or that within a few days after the sale Joseph Wier purchased those lands from the defendant, and being in possession, claiming under his father's deed to him, took a deed of release for the land from the defendant, with a transfer of his bid and an order to the sheriff (Coulter) to make a deed to Joseph Wier instead of the defendant; and that Joseph Wier then paid or secured the price to the defendant, and afterwards satisfied it, in particular, by the sale of a slave called Anthony to the defendant. The bill further charged that this arrangement was communicated to Coulter, the sheriff, who was directed by the defendant to convey to Joseph, and that the latter applied to him for that purpose; but that he did not execute the deed, because the parties had not furnished him with the boundaries of the land, so that he could describe it: that Joseph Wier in 1825 committed a capital felony, and that being in prison in the latter part of the year 1826, on that charge, with a view of defeating his creditors, and particularly the state, of the benefit of his forfeited recognizance, he came to some secret agreement with the defendant, whereby, without adequate consideration, he abandoned all claim to the said land, and allowed the defendant to take the sheriff's deed to himself: or that the defendant having or pretending some other claim to the said land under some other purchase at sheriff's sale then recently made, applied to Joseph Wier then in prison, for the inspection of his title papers, that he might ascertain the parcels of which the whole tract consisted, and have it surveyed for the purpose of taking deeds under such last pretended purchases or claims: that said Joseph Weir delivered to the defendant or his surveyor some of his title papers for the purpose aforesaid, and gave him a letter, or sent him a message to his, Wier's, wife (who was residing on the land), to put into the defendant's hands his other title papers, which were at home, or give him free access to them for his inspection and information; and that he did have such access to the papers and took them into possession, when about Christmas, 1826, he went upon the land to survey it: that among the deeds and papers which thus came to the hands of the defendant by the delivery of Joseph Wier or his wife, was the release or transfer made by the defendant himself to the said Joseph as aforesaid, which either upon the fraudulent agreement between the defendant and the said Joseph before alleged was cancelled without having been proved or registered, or was without the privity or consent of the said Joseph, spoliated and suppressed by the defendant: that the said Joseph was convicted and executed for the crime with which he stood charged, without having received a deed from the sheriff, and that soon afterwards the defendant procured the sheriff (Coulter), to execute to the defendant a deed bearing date the 26th April, 1827, under his purchase of October the 21st, 1822, in which was included much more land than the defendant actually purchased, and particularly the tract of two hundred and twenty-three acres before mentioned, which was granted to Joseph Wier himself, and had never belonged to Robert Wier. The bill further stated, that the defendant, until within a very short time before he obtained the deed from the sheriff, did not claim the land under his purchase of October, 1822: that he did not list it for taxation as his property, nor pay the taxes, nor receive rent therefor from Joseph Wier, who occupied it as owner: that after his purchase the plaintiff entered into possession and now occupies the land.

The prayer was for a discovery of the agreements between the defendant and Joseph Wier; for the discovery and production of the release or deed of assignment by the defendant to said Joseph, that it may be proved and registered; and for a conveyance from the defendant to the plaintiff, and for general relief.

The answer admitted the title of the plaintiff under the execution in favour of the state against Joseph Wier, as stated in the bill; also the deed from Robert to Joseph of 6th March, 1809, and affirmed to be fraudulent against creditors. It also admitted the judgment and execution in favour of John Wier against Robert, and insisted that the land was subject thereto. It admitted the defendant's purchase at the sale under that execution in October, 1822, and that he took the deed from the sheriff on the 26th April, 1827. It admitted that the tract of two hundred and thirty-three acres never belonged to Robert, but was granted to Joseph; but stated that the defendant was ignorant of that fact when he took his deed. In relation to this subject the answer stated, that he was ignorant of the boundaries of the land, and for the purpose of procuring this deed from Mr. Coulter, he employed Mr. Cansler, then the sheriff of the county, to make a survey. That Mr. Cansler had procured from Joseph Wier, while in his custody, his title papers, and that from them and the information derived by Cansler from Joseph Wier, he made the survey and ascertained the boundaries and drew a plat, which by mistake included the two hundred and thrity-three acres, according to which Mr. Coulter conveyed; but that as soon as the defendant discovered the error, he disclaimed the title to that part of the land, of which the plaintiff had notice. The answer further stated, that the defendant entered into the lands in the spring of 1827, and was peaceably possessed, until during his absence from the county in the succeeding autumn, the plaintiff, by threats or promises to his tenants, obtained possession, and compelled the defendant to sue at law, to recover it.

The answer denied positively the contract or agreement between the defendant and Joseph Wier, as alleged in the bill; and stated, that the allegation “that at the time the defendant purchased from Coulter, or at any time afterwards, he transferred his bid or right to said Joseph, is entirely untrue.” The answer set forth the transactions, in which such a transfer was made, but affirmed that there was none of the Home-place. It stated, that in March, 1821, a tract of land containing six hundred and forty acres, situated on Muddy Fork, and belonging to Robert Wier, was sold at the suit of one Magness, and purchased by the defendant, at sixty-three dollars; and that at a sale under the execution of John Weir against Robert Weir, in July, 1822, the defendant purchased another tract containing three hundred and thirty-three acress, situated on Suck Fork, at one hundred and...