Kemp v. Earp

• Decision Date: 31 December 1850
• Citation: 7 Ired.Eq. 167,42 N.C. 167
• Court: North Carolina Supreme Court
• Parties: POLLY KEMP v. LITTLEBERRY EARP et al.

7 Ired.Eq. 167

42 N.C. 167

POLLY KEMP

v.LITTLEBERRY EARP et al.

Supreme Court of North Carolina.

December Term, 1850.

Where it was complained, that a deed, which appeared on its face to be for an absolute sale of land, was, in reality, intended as a mere security for money loaned or advanced, it was held by the Court, that the following facts established by the proofs were entirely inconsistent with the fact of an absolute sale and showed that the conveyance could only have been intended as a mortgage; 1st. that the consideration expressed was less than one third of the value of the land; and the grantor could then have sold it for the value; 2ndly. Under the same arrangement, under which the land was conveyed, and about the same time, the grantor took a bill of sale, absolute on its face, for some perishable property, as corn, &c.?? and it is admitted this was only a security for the loan of money: 3dly.?? The grantor remained in possession of the land for nearly two years, before it was claimed by the grantee, without any charge of rent; 4thly. the sum paid on the mortgage of the perishable estate exceeded the amount due on that mortgage: 5th. The precise and peculiar fraction in the sum alleged as the value of the land and the purchase money, $31 40.

Cause removed from the Court of Equity of Johnston County, at the Fall Term 1850.

W. H. Haywood and Busbee, for the plaintiff .

Miller and Winston, for the defendants .

PEARSON, J.

The plaintiff owned about 75 acres of land, which adjoined the land of the defendant, Littleberry Earp, and on which she lived. She owned, besides her land, ten barrels of corn, and some fodder, household and kitchen furniture, a few farming tools, a few hogs, a cow, and some sheep. She was indebted to one Wood, in the sum of $18, and was surety for one Ligon on a note to said Wood for $54, principal and interest; and, she owed to one Richardson a debt of $31 40. These debts were reduced to judgments and her property levied on. On the 13th of November 1845, she executed to said Littleberry Earp an absolute deed in fee simple for her land, and the consideration expressed is $31 40. On the 12th of November 1845, she executed to said Earp an absolute bill of sale, for the ten barrels of corn, fodder, hogs, cow, sheep, farming tools, and household furniture. The consideration expressed is $18. At the same time Ligon executed an absolute bill of sale to said Earp, for a horse, a plough, and a few other articles. The consideration expressed is $54, and thereupon the said Earp assumed the said three debts, which he afterwards paid. In the Fall of 1846, the plaintiff paid to the defendant $27, and Ligon paid him the $54 and interest, and in the Spring of 1847, the plaintiff tendered to the defendant the balance of the money, which he had advanced, together with the interest thereon, and desired a reconveyance of the land. The defendant refused to accept the money, and insisted that the land was his, absolutely; and afterwards commenced an action of ejectment, and the plaintiff filed this bill; in which she alleges, that to relieve her property from execution sale, she applied to Wyatt Earp, one of the defendants, to lend her the money, and to take her land, and other property as security, and, after some negotiation, the defendant, Littleberry, finally agreed to “befriend her,” by lending her the money, and taking deeds on the land, and other property as security, and also taking a deed from Ligon for his property, so as to relieve her from her own debts, and that for which she was bound as his security, these three debts being all she owed; and accordingly the deeds were executed, with a full assurance on the part of the defendant, Littleberry, that upon the repayment of the money, he would let her keep her property and reconvey the land; that she remained in possession of the land and other property, and in 1846, by her small crop of cotton, was able to make a payment of $27, and Ligon paid off his debts, and in 1847, she procured the money to discharge the balance, when the defendant, in violation of his promise, and the assurance, that the deed was only to be a mortgage, set up an absolute claim to her land; that she is poor, and illiterate, and would have signed any paper on the assurance of Earp, in...