Den on Dem. of Latta v. Morrison, 23 N.C. 149, 1 Ired. 149 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 149, 1 Ired. 149

DEN ON DEM. of JOHN LATTA et al. vs. JAMES MORRISON.

if one of several heirs, to whom a tract of land has descended, make a voluntary conveyance of it, and afterwards the other heirs file a bill for the sale of the land for partition to which the voluntary grantor is made a party defendant, and a decree be made ordering a sale by the master, the purchaser at the master’s sale for a valuable considerado^ if the master’s report be confirmed, and he be ordered to execute a deed to the purchaser, will be a purchaser of the land within the meaning of the statute of 27th Eliz. (I Rev. Stat. ch. 50, sec. 2,) and the master, in executing the deed to the purchaser, will be taken to have acted as the agent of the heir, and his deed will defeat the pre* vions voluntary conveyance.

Ejectment for a tract of land, tried at Buncombe, on the last circuit, before his honor Judge Hall.

The land in controversy, belonged originally to James Latta. He, in the year 1818, conveyed it to his son John Latta, though there was a dispute on the trial whether this deed had ever been delivered. In the 3rear 1823, John Latta voluntarily, and without any consideration, conveyed the land to several persons by the name of Case, who were the other lessors of the plaintiff. In the year 1834, some of the heirs at law of James Latta filed a bill in Equity, under the act Assembly of 1812,1 Rev. Stat. ch. 85, sec. 7, for the sale of all the lands which had discended to them from their ancestor, and that the purchase money might be divided among the heirs. To this bill John Latta was made a party defendant. There was an interlocutory decree, that the Master should sell the lands, and report to the court. The Master sold several tracts of land, and amongst others, the land in controversy, as land which had descended from James Latta to his heirs; and he made his report accordingly to the court, which was confirmed. John Latta was present at the Master’s sale of the land, and did not dissent; but had an agent bidding for himself. The Cases were present at the Master’s sale, and gave notice of their deed from John Latta, and claimed the.land as belonging to them under the said deed. The defendant being the best bidder, purchased the land for a valuable consideration; and the court ordered a deed to be made to him for the land, which the Master executed, and he took possession. The court charged the jury, that under this state of facts, the law was .with the defendant, and that the plaintiff was not entitled to recover. There was a verdict and judgment for the defendant, and the plaintiff appealed.

No counsel appeared for either party in this court.

Daniel Judge,

after stating the case as above, proceeded as follows: If John Latta, instead of the Master, had made a conveyance of the land to the defendant, for a full and valuable consideration, the title would have passed: and the prior deed from John Latta to the Cases, being voluntary, would, as to the defendant, have been deemed void by force of the statute of 27th Elizabeth, (see 1 Rev. Stat. ch. 50, sec. 2.) And the circumstance of the purchaser having notice1 of such a voluntary deed at' the time, of his purchase, would make no difference. There have been many decisions, both in England and this Country, establishing these yules of law. If the heirs of James Latta, had filed a petition for the partition of the lands descended to them, and the land in controversy, with the other lands mentioned in the Master’s report, had been partitioned by Commissioners among the heirs, (John being one,) and the report confirmed and a decree had, then John Latta would have been estopped to claim contrary to such a decree, Mills vs. Witherington, 2 Dev. & Bat. 433, although the other lessors of the plaintiff would not have been. But here the land has been sold as part of the lands which descended from James Latta to his heirs. The Master reported accordingly, and the court confirmed the report. John Latta was a party, and had full notice of the proceedings. The Master, by order of the court under the act of Assembly, executed a deed for the land to the defendant. The Master, by force of the act of Assembly, and the order of the court, was the legal agent of John Latta, and the other heirs of James Latta, to make the conveyance to the purchaser of all the lands mentioned in the report to have been sold. The conveyance by the Master to the defendant, for a valuable consideration, made him a purchaser of the land within the meaning of the statute' of 27th Elizabeth, in like mannner as if John Latta had himself executed a conveyance of the land. The Cases being volunteers, cannot be permitted to set up their title against that of the defendant, who is a purchaser for a valuable consideration from John Latta’s agent, the Master in Chancery. The opinion of the court was correct, and the judgment must be affirmed.

Per Curiam. Judgment affirmed.