Rutherford v. Green

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Rutherford v. Green, 2 Ired.Eq. 121, 37 N.C. 121 (N.C. 1842)
• Decision Date: 30 June 1842
• Parties: WILLIAM B. RUTHERFORD and others v. JOSEPH GREEN and others.

2 Ired.Eq. 121

37 N.C. 121

WILLIAM B. RUTHERFORD and others

v.JOSEPH GREEN and others.

Supreme Court of North Carolina.

June Term, 1842.

The act of 1823, c. 1210 (Rev. Stat. c. 38, s. 7,) which declares that “no inheritance shall descend to any person, as heir of the person last seized, unless such person shall be in life at the death of the person last seized, or shall be born within ten months after the death of the person last seized” applies only where the person last seized has died since the passage of that act.

It is at least questionable whether the administrator of an obligee in a bond conditioned to convey land to the obligee and his heirs can maintain an action at law on the bond.

In Equity, a valid contract for the conveyance of land is in itself an equitable conveyance, whereby the person, to whom it is given, is regarded as the complete owner, and is entitled, at any time, to call for a conveyance of the legal title.

Upon his death, intestate, without having obtained such legal conveyance, his equitable ownership descends to his heirs at law. And no arrangement by the administrator, nor receipt by him of the penalty of the bond, or of the value of the land, can defeat this right of the heirs.

A purchase at a Sheriff's sale only transfers the interest of the debtor, whatever it may be, subject to all equitable as well as legal demands of other persons.

The cases of Rutherford v Wolfe, 3 Hawks 272. Cutlar v Cutlar, 2 Hawks 324. Henderson v Hoke, 1 Dev. & Bat. Eq. 147. Thrower v McEntire, 4 Dev. & Bat. 359. Ward v Ledbetter, 1 Dev. & Bat. Eq. 496. Dudley v Cole, 1 Dev. & Bat. Eq. 429. Freeman v Hill, 1 Dev. & Bat. Eq. 389, cited and approved.

This was a suit in Equity, commenced in the Court of Equity for Rutherford county, at the Fall Term, 1839. After answers had been put in, various orders made and testimony taken, the cause was set for hearing and transmitted by consent to the Supreme Court.

The facts disclosed by the pleadings and proofs are set forth in the opinion delivered in this court.

Bynum for the plaintiff .

Alexander for the defendant.

RUFFIN, C. J.

The bill was filed in November, 1839, and the object of it is to obtain a conveyance of four tracts of land adjoining each other, situated in the counties of Rutherford and Lincoln, and containing in the whole 740 3/4 acres; which the plaintiffs claim as the heirs at law of James Rutherford, deceased. It sufficiently appears in the pleadings and proofs, that James Rutherford died in November, 1819, without having been married, and leaving brothers and sisters, natives and residents of Scotland, and subjects of the King of Great Britain, and also leaving Walter B. Rutherford, a son of Alexander Rutherford, one of the said brothers of the said James, which said Walter B. was also a native of Scotland, and came into this State and married here in the year 1816, and has ever since resided here without being naturalized; and that the plaintiffs are the issue of the said Walter B. Rutherford, born in this State, of his said marriage.

The bill states, that in 1818, James Rutherford, for a price paid, purchased the land in question from Joseph Weir, who was then seized of it, as described in the bill, and in a plat of survey thereto annexed; and that Weir then executed a penal bond for a large sum of money, with condition to be void on the conveyance of the land in fee simple by Weir to Rutherford or his heirs on request. That one Hogg became the administrator of the intestate James in 1823, and came into possession of his papers, and, among them, of the bond or articles in question; and that upon some agreement or combination between Hogg and Weir, the former delivered the bond to the latter, from whom it has not been since obtained, and by whom it was probably destroyed.

The bill then states, that Joseph Weir died in 1828, leaving a widow and several children, who are made defendants in this suit; and also that Joseph Green, another defendant, is in possession of, and claims a part of the land purchased by James Rutherford, but that if he has a sufficient conveyance for the same, he took it with notice of J. Rutherford's previous purchase, and cannot hold against the plaintiffs. The prayer is for a discovery and production of the bond or articles, and for proper conveyances of the legal title from the defendants for the parts of the land, of which the title is in them respectively, and for general relief.

The widow and heirs of Weir answered together, and the defendant Green separately. Neither answer admits the bond from Weir to Rutherford, nor any knowledge, if there was such an one, that it covered the land in dispute. That of the Weirs states, that as they understood and believe, Hogg, as administrator of James Rutherford, instituted an action of debt against Joseph Weir on some bond, and that a compromise was made between them, on which Weir paid the costs and made satisfaction to Hogg for the contract and took it up; and they suppose that may have been the instrument on which this bill is founded, though of that they have no knowledge or information. Those defendants further say, that they have not been in possession or enjoyment of any of the land claimed by the plaintiffs, since the death of Joseph Weir; and they do not admit that the plaintiffs are the heirs at law of James Rutherford.

The answer of Joseph Green admits the plaintiffs to be Rutherford's heirs, as alleged by them; and that he was seized of 640 acres of the land described in the bill and lying in Lincoln; which he claims in the following manner: He says that Joseph Weir entered into a recognizance which bound these lands to the State, upon which judgment was rendered, and the lands sold by the sheriff on an execution thereon issued, and were purchased by one Samuel Green, who took a sheriff's deed, and afterwards conveyed to this defendant, Joseph Green.

Both the answers further state, that before the conveyance from Samuel to Joseph Green, the plaintiffs filed a bill upon the same subject matter against Samuel Green and the present defendants, the Weirs; in which there was a decree in favor of the defendants to that suit, dismissing the bill; and they pray the benefit thereof as a bar to the present bill.

It may be as well to dispose of this last point at once, by mentioning that the defendants have failed to establish it by offering any former decree in evidence. The truth is, the answers are mistaken on that point, as we happen to remember that the former suit alluded to was transferred to this court for hearing; and that when it should have been heard, the counsel for the plaintiffs found, that for some defect of proof, he could not sustain the bill, and asked leave to dismiss it before the hearing, without prejudice; which was accordingly granted; and then, it seems, the present suit was brought. Clearly, if the former proceedings were before us, there is nothing in them that could present an obstacle to the present bill; but as they have not been read, it is sufficient to declare that the defendants have failed to establish the fact stated in that part of their answers.

Upon the question of the right of the plaintiffs to inherit from James Rutherford, which is made in the answer of the Weirs, the court entertains no doubt. The facts are clear, that they are the nearest relations of the deceased, who are citizens of the United States, and that their father and all the brothers and sisters of the...