Blake v. Allman, 58 N.C. 407, 5 Jones Eq. 407 (1860)

Aug. 1860 · Supreme Court of North Carolina

58 N.C. 407, 5 Jones Eq. 407

DANIEL BLAKE against J. W. ALLMAN.

A trustee, who permits one to hold adversely to his title for more than seven years, under a grant, cannot sustain a bill to have such holder converted into a trustee, although the cestui qui trust may have been under age and out of the State at the time.

A trustee cannot proceed to vindicate the title entrusted to him, from ail acL verse claim, by a bill, without making the cestui qui trust a party.

Cause removed from the Court of Equity of Cherokee county.

The bill, in this case, was brought by the plaintiff, as trus tee, holding for and in behalf of an infant, the heir of one Courtney. The .allegation is, that Henry Courtney, a foreigner, at one of the sales of Cherokee lands, authorised by act of Assembly, bid off the land in question, and took the certificate of purchase in the name of the plaintiff, at the same time paying one-eighth of the purchase-money according to the terms of the sale, and gave bond with the defendant and one Pace as sureties, for the remainder of it; that in 1839 and l|42, he made payments, amounting to nearly one-half of the sum agreed to be given for the land ; that Henry Courtney died intestate, leaving one son, Charles Courtney, a resident of Georgia, his heir-at-law, who also died intestate about the year 1844, leaving an infant son, whose name is unknown to the plaintiff, his heir-at-law, who is the cestui qui trust and beneficial owner of the said land ; that in 1845, an act of the General Assembly was passed, constituting a board to value the lands purchased from the State at the sales aforesaid, and to assure such lands at such valuation to the purchasers, and. in case of the insolvency of the principals, to their solvent sureties, on certain conditions as to securing the purchase-money ; that the guardian and friend of the said infant procured one Rhea to list the said tract for valuation, and that he was ready to comply with the terms of the act of Assembly by paying the residue; that the defendant had paid some money towards the land at various times, amounting, in all, to about $10,00, and appearing before the said board of valuation, by collusion with the commissioners, or some of them, he procured the name of the plaintiff, in which it had been listed by Rhea, for the valuation, to be stricken out, and that of the defendant to be inserted ; that with what had been paid by Courtney, and the sums paid by him, (defendant) there remained but thirteen cents to make up the amount, at which the commissioners valued it; that this small sum was paid by the defendant, and he took the commissioners’ receipt and certificate, which, by the act aforesaid, entitled him to a grant from the State; that he accordingly obtained a grant, and having entered into possession, he, the defendant, had held it for nine years, claiming the land as his own.

The cestui qui trust is not made a party to the bill. The prayer is, that the defendant may be declared a trustee for the plaintiff,, and that be may be ordered to convey the premises either to the plaintiff or to the cestui qui i/rusb'.

There was an answer and other pleadings in the case, but as the view of the Court is confined to the plaintiff’s bill, it is not deemed necessary to set them out.

/Shipp, for the plaintiff.

J. IF. Woodfin, for the defendant.,

MaNly, J.

Upon a consideration of the pleadings in this case, two objections to- the relief which the plaintiff seeks, are apparent and decisive.

"Whatever may have been the merits of the complaint, if made in time, it is too late now after the defendant has been nine years in adverse possession of the land in question, claiming it under a grant to himself, to- declare his holding a constructive trust for plaintiff! E olio wing the rules of law for quieting titles to lands and litigation generally, the bill ought to have been brought, at furthest, within seven years after the possession taken under the grant.

It is alleged in the bill, that the purchase of the land hr question, was made-in the name of the plaintiff by Henry Courtney, and that an infant, whose name is-unknown, residing in Georgia, is the person who is now entitled to-the beneficial interest in- tho same. We do not think that this fact alters the case. The trustee, Blake, has allowed the time to-run out, and his rights are barred, whatever liabilities may spring out of the negligence as between- the infant and the plaintiff, or between the infant and both the parties to this suit.

The fact, however; thus noted, suggests the other objection to any relief under this bill, and that is : the child, in Georgia, is a necessary party to the bill. His interest, in any decree, which is asked for, or can be made-in the case, is direct and plain, and no authority is requisite to show that he is a-necessary party to the bill. It is a principle of Equity jurisprudence to avoid a multiplicity of suits, and so- to order proceedings as to do complete justice between all the parties interested in the subject matter before the Court.

For either one of the reasons, thus given, the bill should be dismissed with costs.

Per Curiam, Bill dismissed.