The legal title of this land was unquestionably in M’Culloch on the 4th July, 1776, Michael having only an equitable right, in the assertion of which a Court of Equity would have aided him upon his paying the purchase money. It was therefore rightfully the subject of confiscation as the property of M’Culloch, and was accordingly confiscated and vested in the State, from whom the Plaintiff derives his title. The extent of the Defendant’s claim upon the justice of the State, or how far a Court of Equity would interfere against the present Plaintiff, on the ground of notice, it is neither necessary nor proper that we should decide, upon the present occasion.
Den on demise of Cunningham v. Michael, 1 N.C. 77, 1 Cam. & Nor. 77 (1800)
June 1800
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North Carolina Court of Conference
1 N.C. 77, 1 Cam. & Nor. 77
Den on demise of Joseph Cunningham, vs. Nicholas Michael.
Ejectment in Salisbury Superior Court.
The following case agreed by the Counsel of the parties: On the 8th day of December, in the year of our Lord 1772, Henry Eustace M’Culloch, sold for and in consideration of the sum of pounds, three hundred and thirty-one acres of land, being the land in question, to Frederick Michael, father of the Defendant; that said M'Culloch executed a bond to said Michael, at the time of the said sale, in the words following, to wit: “ Know all men by these presents, that I, Henry Eustace M’Culloch, of the province of North *78Carolina, bind and oblige myself to Frederick Michael, of Rowan county, in the penal sum of four hundred pounds, proclamation money ; conditioned to be void on my making him, or such person as he shall direct, in writing, a good and sufficient deed, right and title forever, to three hundred and thirty one acres of land lying on both sides of Swearing Creek, as the same was surveyed the 11th day of November last, on the payment of a certain bond given by the said Michael to the said Henry Eustace M’Culloch, and bearing even date herewith;” that the said Frederick Michael entered upon and took possession of the land aforesaid, and continued in possession of the same until his death; and that the Defendant hath been in possession ever since; that there was paid to the said H. E. M’Culloch, by said Frederick Michael 12l. on the 23d day of December, 1772; that there was paid to Thomas Trohock, Attorney in fact for said M’Culloch, 1 1l. 18s. by said Frederick Michael, on the 4th of February, 1773 ; and that these payments were made in part discharge of said bond given by said Frederick Michael to said M’Culloch, for the aforesaid land; that the lands aforesaid were sold by the Commissioner of confiscated property, and purchased by the Plaintiff, who hath obtained a grant from the State for the same, dated the 8th day of November, 1784, and that suit was brought by the Plaintiff in May, 1791, and that all the lands, tenements and hereditaments of said Henry Eustace M’Culloch, and every right, title and interest which he had to lands in the State of North-Carolina, on the 4th day of July, 1776, were confiscated, forfeited, and vested in the said State, and that the said lands were sold upon the ground of the right to the same being in said H. E. M’Culloch, on the said 4th day of July, 1776; and it is further agreed that at the time the Plaintiff purchased said land *79of said Commissioner he knew that said Michael had purchased said land in manner before mentioned from said H. E. M’Culloch.
W. L. ALEXANDER, Atto. for Plff.
ARCHIBALD HENDERSON, Atto. for Def.