Hunsucker v. Tipton

• Decision Date: 31 August 1852
• Citation: 35 N.C. 481,13 Ired. 481
• Parties: DEN ON DEM. OF NORTH CAROLINA TO THE USE OF A. G. HUNSUCKER v. SAMUEL V. TIPTON.
• Court: North Carolina Supreme Court

13 Ired. 481

35 N.C. 481

DEN ON DEM. OF NORTH CAROLINA TO THE USE OF A. G. HUNSUCKER

v.SAMUEL V. TIPTON.

Supreme Court of North Carolina.

August Term, 1852.

The owner of a tract of land, purchased at the Cherokee sales, is estopped to deny the right of one, who has bought at a sale under an execution against him, though such purchaser at the Cherokee sales has not yet paid the State and therefore has acquired no legal title.

The cases of Jordan v. Marsh, 9 Ire. 234, Deaver v. Parker, 2 Ire. Eq. 40, and Davis v. Evans, 5 Ire. 525, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at the Fall Term, 1851, his Honor Judge BATTLE presiding.

J. Baxter and Gaither for the plaintiff .

J. W. Woodfin and N. W. Woodfin for the defendant .

PEARSON, J.

The lessor of the plaintiff produced a judgment and execution and the Sheriff's deed to him as the best bidder. The defendant, who was a debtor in the execution and was in possession of the land, put his defence on the ground, that he held under a contract or certificate of purchase of Cherokee land, the title to which was not to be made until paid for, and that, inasmuch as he had no title, therefore he should be allowed to remain on and cultivate the land as belonging to the State.

The rule, that a defendant in an execution is not allowed to dispute the title of the purchaser at Sheriff's sale, is well settled, and although there may at times be a case of hardship, still as a general rule it has had a wholesome effect and tends greatly to discourage litigation, and to enhance the value of land sold under execution, by having it known that one, whose land has been sold by the Sheriff, has no right to continue in possession and dispute with the purchaser about title, provided the judgment and execution are in due form. We can see no sufficient ground for making an exception to the general rule in the present case. Jordan v. Marsh, 9 Ire. 234, has no application, for there the defendant had acquired a new possession under the paramount title of a prior purchaser at Sheriff's sale. Deaver v. Parker, 2 Ire. Eq. 40, in which it is held, that a purchaser of Cherokee land, who has not paid the State, has no such interest as can be sold under an execution so as to confer on the purchaser at Sheriff's sale a right to call for the legal title, without having made payment to the State and when in truth the State was paid by the defendant in the execution after the sale by the...