Markham v. Shannonhouse, 39 N.C. 411, 4 Ired. Eq. 411 (1846)

Dec. 1846 · Supreme Court of North Carolina

39 N.C. 411, 4 Ired. Eq. 411

ANTHONY R. MARKHAM & AL. vs. ELIZABETH SHANNONHOUSE & AL.

A. purchased at execution sale a tract of land belonging to B.; afterwards the same tract of land was levied upon and set up for sale under another execution against B. posterior in its lien. A. forbid the sale and then bid for the land and it was struck oft’ to him. Held, that, in so doing, A. was guilty of no fraud upon B.

Cause removed from the Court of Equity of Pasquotank, County at the Fall Term, 1846.

The plaintiffs state that they are the children and heirs at law of Anthony Markham, and that a judgment was rendered at June Term, 1828, of Pasquotank County Court, and the land, the subject in controversy, sold under the execution issued thereon and purchased by Thomas L. Shannonhouse, the father of the defendants, who are his heirs at law. They charge that at the sale by the Sheriff, Thomas L. Shannonhouse was present and forbid the sale, alleging that the title of the land was in him. That the land was bid off by one Ambrose Knox, who was acting as the secret agent of said Shannonhouse, who immediately directed the sheriff to make the deed of the land to him, as he had bought it for him. The bill prays that the defendants may be compelled to re-convey the land, &c.

The defendants in their answer state that in the year 1825, one William C. Banks obtained a judgment, in the Court of Pleas and Quarter Sessions, against Demarcus Markham and Anthony R. Markham, the father of complainants, upon which an execution issued and was levied on the land in question, which was sold at the Court house door, and he became the purchaser, and took a deed therefor from the sheriff on the 7th day of December, 1825, and that under that deed he claimed the land as his.

A copy of the record of the suit of Banks against Demarcus Markham and Anthony R. Markham, and the sheriff’s deed of December 1825, to Thomas L. Shannon-house are filed as exhibits in the case. The deed bears date as set forth in the answer and is proved and registered at March term, 1826, of Pasquotank Court of Pleas and Quarter Sessions.

No counsel for the plaintiffs.

A. Moore, for the defendants.

Nash, J.

The bill sets forth that the land claimed by the plaintiff, and for the re-conveyance of which it is filed, is the land sold under Banks’ execution. There is then no question as, to the identity of the land. The only ground, upon which the.plaintiffs seek a re-conveyance, is the fraud, it is alleged, perpetrated by Shannonhouse in forbidding the sale, at which he purchased. To this allegation of fraud the defendants reply, that the land, at the time of that sale, did actually belong to Thomas L. Shannonhouse and the exhibits prove it. ' The title being in him, he could perpetrate no fraud upon the plaintiffs by forbidding the sale and afterwards purchasing himself. The plaintiffs do not allege in their bill any fraud in the first sale, or that Thomas L. Shannonhouse held under any trust for their father Anthony Markham. That sale they do not impeach any farther than to allege, that Thomas L. Shannonhouse forbid the sale under a pretended title. GThe defendants have shown a title in their father, upon its face good and perfect. Under a different form of the bill, the facts alleged might become important. In the present case they are not. Thomas L. Shannonhouse had a right to forbid the sale of his own land and then to purchase, if he chose. In so doing he did no injury to the complainants, and committed no fraud upon them.

Per Curiam.

Bill dismissed with costs.