Baxter v. Farmer, 42 N.C. 239, 7 Ired. Eq. 239 (1851)

Aug. 1851 · Supreme Court of North Carolina

42 N.C. 239, 7 Ired. Eq. 239

JOHN BAXTER vs. H. T. FARMER & AL.

One cannot be allowed to call for the title papers of another, under whom he sets up no title nor interest in himself, except that he may, possibly, at some time find it convenient to use them in an action at law, as evidence against those having them in possession, upon a collateral matter.

Bills to perpetuate testimony only lie, when the evidence relates to legal rights, which cannot be tried immediately, by reason of the impediment of a prior legal title, outstanding in the defendant or some one else.

Appeal from the Court of Equity of Henderson County, Spring Term 1850, his Honor Judge Caldwell presiding.

The bill states that in 1815, George Ashford, Mary Ash-ford and Anna Ashford were seised in fee in possession of an undivided moiety of a tract of land, containing 700 acres, and Martha McCarson was seised of the other moiety, as tenants in common ; that said Mary married Henry Richards and Anna manned James A. Tucker, and that on the 19 th of December 1826, the said George, Henry and Tucker made a deed of bargain and sale, to 3amuel McCarson purporting to convey to him the said undivided moiety in fee simple, and said Samuel entered under the same, and in October 1828, the said Samuel and Martha McCarson, and her husband, J ames McCarson, made partition of the said land, and Samuel held the one half in severalty and conveyed the same to Frederick Rutledge, and he entered and held the same in severalty ; and that, by divers mesne conveyances to-them respectively made by the defendants, Farmer and King, they have acquired the title of Samuel Mc-Carson to separate parts of the said moiety, and also to the other moiety, which was allotted to J ames McCarson and wife in the partition; and the defendants are now in possession of the parcels of the land claimed by them severally under the title thus derived.

The bill further states, that in June 1848, Mary Richards and Anna Tucker, and their said husbands, joined in a deed ofbargain and sale to the plaintiff, whereby they conveyed to him, upon certain terms in. the deed recited, the reversion of and in the said land so conveyed to said Samuel McCarson, and tjiat the said deed was so executed as to pass and vest in the plaintiff the estate and interest of the said Mary and Anna of and in the land. The bill then slates, that some of the grants and mesne conveyances, under which the said Mary, Anna, and George Ashford derived title to the land, have not been registered, so that the plaintiff, should he be under the necessity of prosecuting a' suit for the recovery of any part of the land, after the death of the said Henry or James A , when his right to the possession will accrue, will not be able to deduce a regular claim of title, and will be defeated of his action against the defendants or those claiming under them, unless he can show against them that the defendants claim title to the •same and entered into possession thereof under the deeds and conveyances aforesaid. The bill then states, that the 'defendants and those under whom they claim, have in fact held the possession of the land for more than twenty-five years, claiming undei the said deed from George Ashford, Richards and Tucker to Samuel McCarson, and under no other title, but that the said deed hath not been registered and the defendants withhold it from registration for the purpose of preventing the plaintiff from using the same or a copy thereof, as evidence that Samuel McCarson and the defendants -claim under the same. The prayer is that the defendants be compelled to discover the deed and have the same registered, or produce the same in Court and allow the plaintiff to have it registered, so as to enable him to use it for the purpose aforesaid. The defendants put in a demurrer, assigning many causes, and, on argument, it was sustained, and the plaintiff appealed.

<?. W. Baxter for the plaintiff.

N. W. Woodfin, for the defendants.

Ruffin, C. J.

The principle of this bill is new to us; and it seems somewhat singular, that one should be allowed to call for the title papers of another, under which the plaintiff sets up no title nor any interest in himself, except that he may possibly at some time find it convenient to use them in an action at law as evidence against the defendants, upon a collateral matter. Whether such a bill will lie or not the court conceives that the present bill will not, because it .does not show that the plaintiff is legally entitled to the reversion, so as to enable him to maintain an action at law in which the evidence, if he had it, could be useful to him; since it does not appear that his own deed is registered, and consequently'he has not thé legal title. It is said that the bill ought to be sustained, as it is in the nature of one to perpetuate evidence. But such bills only lie when the evidence relates to legal rights, which cannot be tried immediately, by reason of the-impediment of a prior temporary legal title outstanding in the defendant or some one else. If the right of the party be an equitable one, there is no impediment to an immediate suit in Equity for relief, and therefore there is no ground for a bill for discovery, merely, or for perpetuating evidence with a view to a future litiga-, tion in the Court of Equity. Upon this ground then, without considering the others, the demurrer was properly sustained, and the decree must be affirmed, and the bill dismissed with costs in both Courts.

P-ER Curiam. Bill dismissed with costs.