Reynolds v. Flinn, 2 N.C. 123, 1 Hayw. 123 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 123, 1 Hayw. 123

Reynolds v. Flinn.

The act of 1777, Rev. ch. 114, voiding titles, &c. means void as to the state which proceeds to avoid by scire /acias-.

Ejectment. The Plaintiff produced a state grant for the lauds in controversy, and rested his cause upon it. The Defendant alleged and offered to prove, that one Murphy had entered this land in the Entry-taker’s office —that it had been sold as Murphy’s property by execution, and under that sale came to’ the Defendant — that afterwards Reynolds the Plaintiff, having a knowledge of these circumstances, procured the entry to be transferred, as it is called, in his name — that is, to have the name of the original enterer erased, and his own inserted in its place. He did this with intent to defeat the interest of the purchaser, and then secretly obtained his state grant.

Judge Williams — I know of no law by which-lands only entered, and not appropriated by the execution of a grant, can be sold. Toe. enterer has no title or property till bis grant is completed.

Counsel for the Defendant

Whatever the party himself may sell and dispose of, the Sheriff may sell and dispose of for him by execution to satisfy his debts, and by act 1779, ch. 4, s. 4, it is enacted, “ That in tase of the death of any person, who heretofore has made an entry of land, or who hereafter shall make an entry, pending the same, or before the making out the grant, his or their heirs or assigns shall have a Tee-simple in the premi-es* although the- grant shall be made in the name of the decedent.” By the word assigns here used, it is plainly implied he may sell and dispose, of the interest he lias acquired by the. entry, and that such sale and. disposition shall vest a fee in the purchaser, upon the event, of the grant issuing after the death of the. enterer in his name : and if it be true tluvt the Sheriff may sell by the authority of an execution, all such property, or subjects of property, as the debtor himself.can sell, this clause au-thorises the sale of lands which a debtor has entered ; and then it follows that the law should protect such sale., with as much ease, and by the same rules that it protects sales of other subjects of property.

But per curiam,

Judge Ashe and Judge Williams

Here the Plaintiff has a state grant, and it would be of the most dangerous consequences to void it by parol testimony. It is true, that the art of 1777, ch. 1, sec. 9, says, that every right, title, claim, &c. obtained in fraud, elusion or evasion of the premises of that act, shall be deemed void — but the meaning is, it shall be void as to the State, who may proceed to void it by sci.fa. and having a judgment founded on that on record expressly against it — not that it shall be voided, upon evidence in an ejectment by an individual citizen. It is truq also that the act further directs, that a party preferring a subsequent claim, shall give bond to prosecute the claim with effect, &c. as has been stated at the bar \ but as this case is offered to be proven, that would be an act to be dope by the Defendant, when he found that Reynolds had procured the entry to be transferred in his name. The Defendant should then have gone to the office, and caused a caveat to be entered, and should have given the bond that the act directs. It has been argued that the Defendant was a purchaser, and that the Plaintiff having this grant with an intention to defeat that purchase, it was void under the act against conveyances to defraud purchasers ; but that act was intended to void the deeds of private individuals made for such purposes, not deeds granted by the State. The law will not suppose the State concerned with one individual to defraud another ; and indeed.it is much to be doubted, whether an entry can be sold by execution. And if it cannot, then the Defendant is not a purchaser within the meaning of that act. There are many things a man himself may sell, which cannot be sold by execution — if the Defendant hath a judgment for a sum of money, the Sheriff cannot sell it upon a ji, fa. and besides the act cited does not authorise a sale by the entcrer, it directs when the grant from the State comes out in the name of the decedent, the assign shall have a fee-simple in it — -it may mean an assignee in law as a devisee, &c. The act does not say that in all cases the enterer may sell, and that his sale shall be good. Et per Williams to the jury: — This is so clear a case that the jury need not go a foot from the bar. Yet they did retire, and after some time, found according to his direction, for the Plaintiff — dehoc.

Note. — Vide accordingly Sears v. Parker, post 126.—Dickey v. Hoodenpile, post 358.-Cupples, guardian of Allen v. —— post 456.— Foreman v. Tyson, post 496.—Tyrrell v. Mooney, 1 Murph 401.—Tate v. Greenlee, 2 Hawks, 231. Bat when the lands are not in fact vacant and unappropriated, a state grant of such lands is. absolutely void, and that fact may be shown in evidence on a.trialat law in ejectment. University v Sawyer, 2 Hay. 98.—Strother v. Carthey, 1 Murph. 162. Tyrrell v. Mooney, Ibid. 401.