Payne v. Hubbard, 5 N.C. 97, 2 Car. L. Rep. 97 (1815)

Jan. 1815 · Supreme Court of North Carolina

5 N.C. 97, 2 Car. L. Rep. 97

Payne v. Hubbard.

The defendant had purchased, before the year 1777, an improvement on a tract of vacant land, and in 1778 duly made an entry. He was drafted before the 17th April, 1780, to serve in the militia, which he failed to do, or to find a substitute; and being delinquent, on the 24th June following, a warrant was on that day issued by the Colonel of the county, and directed to the deputy sheriff, commanding him to sell so much of the defendant’s property as would make the sum of £3500. This warrant was issued under the 2d section of an act, passed on the 17th April, 1780. The deputy sheriff levied upon the entry abovementioned, and sold it publicly to Daniel Mitchell, who sold it to the complainant’s father, who had the land surveyed and procured a grant to issue for it on the 18th August, 1787, in the name of the defendant. The sheriff afterwards in 1789, executed a deed to Payne, in completion of the sale by his deputy. The bill prayed a conveyance of the land, or a repayment of the purchase money.

Nash, for the defendant,

stated several objections to the complainant’s recovery.

1. That the entry being a mere chose in action, was not liable to execution. 1 Cruise 459. 1 Bl. Rep. 170. 1 Saunders 108.

2. The unconstitutionality of the act of 1780, under which the warrant was issued. 2 Haywood’s Rep. and Mr. Justice Patterson’s opinion in the Wyoming cause.

3. That the warrant was directed to the deputy sheriff, whereas by the act it should have been directed to the high sheriff. 1 Wils. 155. 1 Vesey 195. Yelv. 175.

4. When the land was sold by the sheriff, he could not convey any title, because Hubbard himself was incapable of doing so. Act of 1777, Cap. 33, Sec. 7.

Norwood, for the complainant,

cited on the first point, Shepherd’s Touchstone 501. 1 Saund. 56, 172, 45. 1 Brown 81. Finch 202. 3 Atkyns 309. On the second, Vattel, B. 1, Sec. 1, 2, Cap. 2. Cap. 20, Sec. 244.

Per Curiam.

—It is unnecessary to decide all the questions raised in this case, because we are satisfied that the law Was correctly laid down in the case of Allison v. Kirkland & alias, in this court. It then follows, that Mitchell acquired, no legal title to the land under the purchase made by him at the sheriff’s sale, because Hubbard himself had none. The latter purchased an improvement, which gave him only a right in preference to others, to obtain a legal title from the State, towards which he had advanced so far as to make an entry. But the legal title remained in the State at the time of entry, an equitable title alone subsisting in the defendant, and this we have held could not be sold by execution.

Wherefore, the bill must be dismissed.