Evans v. Lovengood, 54 N.C. 298, 1 Jones Eq. 298 (1854)

Aug. 1854 · Supreme Court of North Carolina

54 N.C. 298, 1 Jones Eq. 298

JOHN B. EVANS against G. W. LOVENGOOD AND OTHERS.

Where it was alleged that a certificate for a preemption claim, in Cherokee, was obtained from the commissioners appointed under the act of 1850, by false swearing, and the purchaser of such claim, who obtained a grant by virtue of such certificate, answers that he purchased the same for a valuable consideration, without knowledge of the alleged perjury, an injunction obtained to restrain the grantee from taking possession under a recovery in ejectment must be dissolved.

It is no ground for refusing to entertain a motion to dissolve an injunction that one of the defendants, in the bill, has not answered where it appears that such answer, if it had been obtained, jould not affect the rights of the party enjoined.

Appeal from a decree of the court of equity of Cherokee eounty, dissolving an injunction theretofore granted, heard before his Honor Judge Dick at the Spring Term, 1854.

In the year 1850, the legislature passed an act authorising the sale of refuse lands, owned by the state, in the counties of Cherokee and Macon ,• in which was provided also, a preemption right in favor of settlers and those who had made valuable improvements, still being citizens of the state.

To carry this act into effect, and in pursuance of a further provision in the act, the governor of this state appointed Henry Cansler, Charles McDowell and Mark Coleman, commissioners, whose duty under the act was (among others) to award certificates to persons entitled to such lands. The commissioners met in the town of Murphy, and proceeded to discharge their duties under this act, when one Amos Carden presented himself before the Board, and put in his claim for a pre-emption right to the land in question, on the ground that he was the Iona fide assignee of his brother Alfred Carden, who had made valuable improvements thereon. Plaintiff alleges that on the investigation of this claim, which was claimed by Amos Carden, his brother Alfred was produced and sworn in behalf thereof, and that he falsely and fraudulently stated the facts of the case, and deceived the commissioners aforesaid by such false representations, and thus induced them to award them such certificate. That the fact was not true that he left property on the premises (as stated by him before the commissioners) in order to enable him to hold possession. That it was not true, as further stated on this occasion, that he had made any valuable improvement on the land.

That in truth, he made no improvement except to occupy an indian hut for about two months, to put up a few' rails and plant a patch of corn when the Cardens both left the state. That in truth the first and only improvement, except as above stated, wts made by one Reuben Burden,’ who assigned the same for valuable consideration to one Singleton Rhea, who in like manner assigned to P. M. G. Rhea, and he to one Richard Roberts, and he to the plaintiff: that as there was no way of getting his witnesses before the commissioners, he was not able to show the facts of his case, nor to prevent the defendants, Carden, from imposing by fraud and perjury upon them, and thus obtaining the certificate. The plaintiff further alleges in his bill, that G-. W. Lovengood assigned his interest in the land in question, to his son, Drury Lovengood, with a full knowledge of the plaintiffs equity, but whether with or without a valuable consideration, he is not able to say ; but that the said Drury has obtained a grant for the premises, and having brought an action of ejectment to recover possession, has obtained a judgment, and threatens to • take out a writ of possession on the same. The prayer of the bill is for an injunction to restrain the defendant, Drury from taking out his writ of possession, and for general relief.

The defendants, Amos Carden and Alfred Carden, filed no answer, but the other two, G. W. and Drury Lovengood, answered, denying the general allegations of the bill, and insisting that Alfred Carden made the first substantial and valuable improvement on the land in question, but that availing himself of a temporary absence of Alfred Carden, one Reuben, Burden entered and took possession of the same, andheld and ■occupied the same by himself and his assignees against his, ■{Carden’s) remonstrances ; but that as they were all trespassers on the public lands, he had no legal remedy to regain the-possession. When, however, the board of commissioners above mentioned was organized, the case was brought regularly before them on the application of Amos, the brother of Alfred, who had become interested in the same, and that the plaintiff was heard in opposition to this claim, and made no objection for the want of witnesses, but went voluntarily into. tbe trial and upon a due consideration of the facts of the case, the commissioners awarded to Amos Carson, a certificate upon this possession, and improvement of his brother Alfred and he (G. W. Lovengood) then believing that the plaintiff had given up his claim, bought the claim of the Cardens, and sold the same to his son, the defendant Drury, who thereupon, obtained a grant from the state. They insist that the facts were fairly represented to the commissioners, and that if this was not so, they were entirely ignorant of the misrepresentation and fraud alleged by the plaintiff.

The case was heard upon the bill and the answer of the Lovengoods, on a motion to dissolve the injunction : and upon argument of counsel, his Honor ordered that the same should be dissolved at the costs of the plaintiff: whereupon the plaintiff appealed to this court.

J. W. Woodjm for plaintiff.

J. Baxter for defendant.

PeaesoN J.

The only ground upon which the plaintiff’s equity can be put, is that fraud was practiced upon the commissioners and their certificate obtained by perjuiy.

The defendant, Drury Lovengood, who is the party enjoined and the defendant, G. W. Lovengood, under whom he claims, both answer, fully denying the allegations of the bill, so far as they have any knowledge, information or belief. They say they have no reason to believe that any fraud was practiced upon the commissioners, or that perjury was committed by the other defendant, Carden, in order to obtain the certificate. On the contrary, they believe the certificate was regularly awarded after a fair investigation, and acting under this belief, the defendant, G. W. Lovengood, purchased the land for a valuable consideration, and conveyed it to the other defendant, Drury : So in this stage of the proceedings, these defendants are to be considered as purchasers for valuable' considerations, without notice ; of course the injunction ought to have been dissolved, unless there is something in the objection that the motion to dissolve, could not be entertained until theother defendants had answered. In regard to this, we refer to Wilson v. Hendricks, (ante 295) decided at this term. If the answers of the Cardens’ were on file, and if they therein should admit that they had sworn falsely in order to obtain the certificate (which supposition is not very probable) still their answers could not be read as evidence against the defendant, Drury Lovengood, who is the party enjoined. Therefore the fact that they had not answered can be no ground for refusing to entertain this motion to dissolve the injunction.

Judgment affirmed.