Patterson v. Bodenhamer, 31 N.C. 96, 9 Ired. 96 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 96, 9 Ired. 96

JOHN PATTERSON vs. WILLIAM BODENHAMER & AL.

A. by a verbal contract, agrees to convey a tract of ¡and to B. upon condition that B. would erect a house upon It. Before this was done C. levies an execution he had against B. upon his interest in the land A. then conveys the land toD. and with a view of overreaching C.’s, execution antedates the deed. Held, that the mere antedating the deed did not make it fraudulent and void. Held, secondly, that B., having only a parol contract for the sale of the land, had no equitable claim against A. which was liable to execution under our Act of Assembly subjecting equitable interests in land to sale by execution.

The cases of Hcndcrsonv. Holce, 1 Dev. & Bat. Eq. 138, and of Thorpe v Hicks, 1 Dev. & Bat. JTq. G17, cited and approved.

Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1S48, his Honor Judge Caldwell presiding.

The action is in trespass, to recover damages for injury to land. The circumstances of the case are as follows. In 1843, a man by the name of Lamb agreed, verbally, to convey the land in question, of which he was the owner, to William Patterson, upon condition that he would put a house upon it and finish it Before that was done, McConnell and Lindsay obtained a judgment against Wm. Patterson, and in the month of July, 1843^ caused the execution which had issued on the judgment, to be levied on the land. An order of sale was obtained at August term, 1843, and under the venditioni ex-ponas, it was sold in November, and the defendant, Boden-hamer, became the purchaser. In order to defeat the levy, Lamb, by the directions of Wm. Patterson, convej'-cd the land in August, 1843, to John Patterson, the plaintiff, who was the father of William, but dated it so as to overreach the levj'. The trespass consisted in removing the house from the land.

The presiding Judge charged the jury, that if the deed to John Patterson was antedated for the purpose of overreaching the levy of the execution, it would be a fraud on the part of the plaintiff, and such an one as would vitiate and defeat his right to recover.

Under the charge of the Court, the jury found for the defendant and the plaintiff appealed.

J. T. Morehead, for the plaintiff.

Iredell, for the defendant.

Nash, J.

We think his Honor erred. We do not believe the antedating the deed, as stated in this case, did have the effect of making it void. The date of the deed is not an essential part of it. It is customary to insert one in every deed, as one and the most certain mode of showing when it took effect — and prima facie, it is evidence of the time of delivery — but, like all such evidence, may be contradicted. But a deed is good without any date, or with an impossible one, for it takes effect from the delivery, and only from that time. The date, inserted, is, however, so far a part of the deed, that if, after its delivery, it be altered by any person claiming an interest under it, without the knowledge of the grantor, or, in case of a bond, of the obligor, it is rendered utterly void, and this, because it ceases to be the deed of the person executing it. It is considered, by the law, out and out a forgery. In this case, the title of the land, in question, was in Lamb, and he made the deed to the plaintiff, and, though the object or purpose, for which it was ante-dated, was a dishonest one, still, between them, it was valid and passed the title to the plaintiff, at least so far, as to enable him to maintain an action of trespass against a wrong doer, and such we consider the defendant. He, doubtless, acted under the belief, that his title to the land was good, but it was. not so. Wm. Patterson, his debtor,, had no such interest in the land as was subject to an execution. So far as the case discloses the facts, he never was in possession. Lamb had verbally promised he would convey the premises to him, upon certain conditions with which he had not complied. But in addition to this, hi&contract uas void, being in> parol. Rev. Stat. Ch. 50» Bee. 8, If it had been in writing, and he had complied with its terms, so far as they were conditions precedent to be performed, hy him-, he could have enforced a conveyance of the legal title from Lamb, and, therefore, would have had such an interest, under the 1st section of. the Act of 1812,. as would have been liable to the That Act is not confined to express trusts, but extendato. all cases, in which any person is, in any manner, seised in trust for a defendant in an execution, as in the case of sale by articles in writing, where the vendee has paid, the purchase money and done all the acts, to be performed by him. Henderson v. Hoke, 1 Dev. & Bat. Eq. 138-, Several cases in this Court establish, the doctrine, that the 1st section-of the Act of 1812, extends to no trust, where the cestui que trust has not a right to call for an immediate conveyance of the legal-, estate. Thorpe v. Hicks, 1 Dev. & Bat. Eq. 617. If the purchase by the defendant conveyed to him the legal title, then, he would hold it. under the 1st section of the Act, discharged of’ any claim by Lamb, for that section acts upon the estate. In whatever way we consider the case, William Patter-son. bad not. such interest in the land as. could.be reached. by an execution at law, and the defendant acquired nothing by his purchase, and in removing the house was a mere wrong doer, and liable to the plaintiff in damages.

Per Curiam. Judgment reversed and a venire de novo awarded.