Clayton v. Markham, 5 N.C. 115, 2 Car. L. Rep. 115 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 115, 2 Car. L. Rep. 115

Clayton & wife v. Markham.

This is an action of ejectment to recover a tract of land to which the plaintiffs claim title in the following words, viz. "Anthony Markham, who was seised and possessed in fee of the premises in dispute, by deed with warranty, conveyed to John Pointer, in 1757—John Pointer died about the year 1783, and the plaintiff is his heir at law. John Pointer, in his lifetime, conveyed the premises in question to Stephenson, Stephenson conveyed to Morris, Morris conveyed to Cyprian Shepherd in 1800. In 1802, the defendant, claiming title to the land, sued Shepherd for a trespass on it, and recovered a verdict. After this recovery, Shepherd, on implication to the representatives of Stephenson, who had warranted, received the value or consideration money. Stephenson’s representatives received from the representatives of John Pointer, who had also warranted, the greater, part of the value or consideration money—This consideration money or value, in each of these cases, was paid voluntarily and without suit.

“The plaintiff Elizabeth, about seven years ago, being then under age, intermarried with the plaintiff John Clayton. There has been no re-conveyance of the premises in dispute from Shepherd, Morris or Stephenson.”

The question submitted to the Supreme Court is, whether the plaintiffs have shewn a sufficient title in themselves to recover in the present action? If they shall be of opinion for the plaintiffs, then judgment to be entered for them — if otherwise, then judgment to be entered for the defendant.

The cause was submitted without argument.

Seawell, J.

delivered the judgment of the court.

The plaintiffs in this case claim title, as heirs of Pointer; and it appears from the case, that Pointer conveyed in his lifetime to Stephenson. If, therefore, Pointer ever had any interest, having conveyed it, nothing was left to descend to his heirs.

The repayment of the purchase money can have no influence on the case: it can in no respect operate as a re-conveyance of the legal estate of lands. Wherefore, we are all of opinion there should be judgment for the defendant.