State ex rel. Lindsay v. England, 29 N.C. 153, 7 Ired. 153 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 153, 7 Ired. 153

THE STATE TO THE USE OF J. R. LINDSAY vs. DANIEL ENGLAND.

Under the Acts for the sale of the Cherokee lands, the purchaser has a rightr upon the certificate of his purchase from the commissioners, to institute an action of ejectment, in the name of the State, against any person in possession.

The person, so in possession, cannot set up as a defence to this action, that'he had received a deed from the purchaser, which had never been registered hut which was alleged to be lost, or destroyed by an agent of the purchaser»

Appeal from the Superior Court of Law of Cherokee County, at the Spring Term, 1846, his Honor Judge Pearson presiding.

Lindsay, the real plaintiff, purchased the land of the Commissioners for the sale of Cherokee lands, and received of them a certificate of purchase. The defendant, being in possession, refused to deliver up the same, when be was required to do so, and this action was brought in the name of the State, to recover possession agreeably to the 15th section of the Act of 1846, (2 Rev. Stat. 213.) The plaintiff offered in evidence the aforementioned certificate, which the said Act declares shall be evidence of title and right to sustain the action, when the purchaser has not forfeited his right under the said purchase. On the trial the defendant offered to prove by parol, that Lindsay had, for a valuable consideration, executed a deed, by which he transferred, released, and assigned to him and his heirs, all the interest, title and claim he had and held, as purchaser, in the aforesaid tract of land, and ■ that the deed had been fradulently obtained and destroyed by Lindsay’s agent before it had been registered. The Court rejected the evidence, the plaintiff had judgment, and the defendant appealed.

Baxter, for the plaintiff.

No counsel for the defendant.

Daniel, J.

The defendant omitted to take an assignment of the certificate, but left that in the hands of Lindsay ; and until a grant is issued for the land, the State can sustain an action of ejectment. By force of the act, the purchaser, who gets a certificate, has the right to institute that action in the name of the State. .

The defendant took a deed of bargain and sale from Lindsay, which was never proved and registered ; and, without registration in the county where the land lies, no' conveyance for land, in what manner or form soever drawn, shall be good and available in law. Rev. Stat. 224. The deed, if it had not been lost or destroyed, could not have been read in evidence for the defendant, either either to show title in him, or to work an estoppel.

Per Curiam. Judgment affirmed.