Nunn v. Mulholland, 17 N.C. 381, 2 Dev. Eq. 381 (1833)

Dec. 1833 · Supreme Court of North Carolina

17 N.C. 381, 2 Dev. Eq. 381

Ilai W. Nunn & Samuel H. Stewart, v. Hugh Mulholland & William Mebane.

One who purchases at execution sale, land which has been entered, but not paid for, must at his peril complete the title, and if the entry is forfeited, he has no equity to claim the iand of the defendant in the execution upon a subsequent entry of it by the latter.

The bill was filed in February, 1829, and charged that in 1826 the defendant Mulholland entered two tracts of vacant land in Orange county, the one containing 214, the other 60 acres; and that they were sold in May, 1828, under a judgment and execution against him, when the plaintiffs became the purchasers and took a sheriff’s deed. That in July, 1829, Mulholland and the other defendant, Mebane, pretending that the former entries were lapsed, re-entered the same lands, and either have obtained grants or intend doing so, although tiiey had full knowledge of the complainant’s purchase, and Mulholiand had himself pointed out those lands to the sheriff as his, and as being subject to the execution.— The bill then charged that the first entries had not lapsed, or if so, that Mulhollaml had suffered them to lapse purposely to defeat his creditors, and the plaintiffs, prayed a discovery whether grants had issued, and if so, that the defendants might be decreed to convey to the complainants, or if no grant had issued that the defendants might be decreed to obtain them and then to convey.

Mnllwlland, by his answer, admited the sale to the plaintiffs, and that he made the entry of 214 acres, and also in conjunction with one Parish entered 120 acres, his half of which he supposed to be the other tract mentioned it the bill. He denied that the entries were made in 1826, but said the time was the 11th day of December, 1825; he also denied that he requested the sheriff to levy on those lands, hut admits that the sheriff shewed him his tax list,and requested him to inform him which tracts were unincumbered by a deed of trust which Jffiti-holland had made to other creditors, and upon that occasion life pointed out these two. He alleged that the entries lapsed in December, 1827, or January, 1828, while he was absent from the State — that he was not present at the sale, but having understood that the plaintiffs had purchased, he soon afterwards informed them that the entries had lapsed before the sale, He admitted that afterwards, in July, 1828, he renewed the entry of 120 acres in the name of Parish and himself, and at the request of the other defendant Mebane, entered the 214 acres in his name,and for his exclusive benefit;

Mebane by his answer admitted the entry in his name In July 1828, and denied any interest oí Mnllwlland in it, and insisted upon his right to enter the land as then vacant.

Both defendants denied that grants had issued, hut admitted their intention to obtain them,

Winston for the plaintiffs

Nash for the defendants.

Ruffi.y, Chief-Justice,

after stating the case as above, proceeded : — If the entries upon which the purchase money to tiic State is not alleged to have been paid, be the subject of execution, the purchaser must yet go on to complete the title and do such acts as the laws require to prevent the land becoming vacant and again the subject of entry. There is no obligation upon the defendant in execution to pay further sums of money,or perfect the title. All his rights were transferred by the sale, and the purchaser takes the land as on entry, subject to the legislative provisions affecting such interests. It is his own fault if he forfeits it to the State, and a new caterer acquires all the rights of the State. The purchase money not having been paid, there is no equity against the State or another enterer. I should therefore see no equity in the bill against either of the defendants, if the entries had not lapsed before the sale, but were suffered to do so before the filing of the bill; since the plaintiffs did not lose the right in the entry, the thing bought by them, by reason of a defect of title in Mutholland or by any act of his, but by tbeir own laches, and when once gone from them, and vested again in the State, she could sell as well to Mulhollanil as to any other citizen, and her rights protect him.— But the present case is still stronger agai ist the plaintiffs for the entries had lapsed at the time of the sale. The answers state them to have been made on the 11th December 1825, and there is no evidence upon the subject, except the deposition of the entry taker taken by the plaintiffs which sustains the answers. By the act of 1808,(ñeu.c/¿.759,) they lapsed on the 15th December of the second year thereafter, viz : 1827, unless the purchase money was then paid, and all the subsequent acts allowing further time to perfect titles, extend only to entries “upon which the purchase money has been paid in due time.” The plaintiffs then bought noth*-ing and can have no relief. Whether the case is within the act of 1807 for the relief of purchasers at execution sales, who lose the estate by reason of the defendants having no title, is not a question here, for the bill is not framed with a view to such relief, and moreover the remedy given by tiie act is at law, and is complete there.

I have considered the case as against Mulkolland, as the stronger of the two for the plaintiffs. Against hcother defendant Mebane there is no pretence on which* as the case is made out, a decree could rest. The bill must therefore he dismissed with costs.

Per Curiam. — Bill dismissed.