Den Ex Dem. Pickett v. Pickett , 14 N.C. 6 ( 1831 )

"The lessor of the plaintiff claimed under an execution sale against one James Pickett, the father of the defendant, who had previously made a deed of bargain and sale to the defendant for the same land — which deed the lessor of the plaintiff alleged to be fraudulent. The defendant contended that his deed was not fraudulent, and that if it was, he had been in the undisturbed adverse possession of the land under it for more than seven years, and had thereby rendered perfect a title which might have been originally invalid.

"It was in evidence that James Pickett remained in possession of the land after the deed made to his son, and even after the purchase by the lessor of the plaintiff at the execution sale, and the lessor of the plaintiff offered to prove that James Pickett had been heard to say, after the execution sale, that he remained in possession of the land by the permission of the lessor of the plaintiff. But this evidence being objected to by the counsel for the defendant, and it appearing that the declaration was not made in the personal presence of the defendant, it was rejected by the court.

"The judge charged the jury that although they might believe the deed to be fraudulent, if the defendant had remained in the undisturbed adverse possession of the land under it for seven years and upwards, they ought to find for the defendant. That from the time of the lessor of the plaintiff's purchase at execution sale, the defendant's (7) possession was adverse to him, without evidence of some kind qualifying the nature of that possession."

A verdict was returned for the defendant, and the lessor of the plaintiff appealed. The general rule of evidence is that the declarations of one person cannot be heard against another. He who offers them must bring the case within some established exception. Commonly, the declarations of a deceased occupier of land, made while he occupied, as to the particular person under whom he held, are evidence to show the tenancy. They are admitted from necessity. And it is deemed safe to admit them, because they are against the interest of the person (8) making them, since they subject him to the action of the landlord for the rent, and for the recovery of the possession, which is, by the declaration, qualified from a prima facie seizin in fee to a tenancy of a particular estate. But declarations of one who had occupied land, made after he had left it, do not stand on the same ground. No case is found in which they have been admitted; and it would be against principle to admit them. Nor do I find a case in which they have been received while the tenant was living. I do not say that in such case they are not admissible; but I do not see any authority for it. And I incline to think they are not; because, while the person himself can be called, there is no necessity for the hearsay; and necessity alone seems to justify such evidence. In this case, however, the other objection is decisive. For not only does the plaintiff fail to show the death of James Pickett, but he also fails to show, as far as stated in the case, that the declarations were made while he occupied. It is to be presumed that they were not, because it is stated only that they were made after the execution sale, and that the ground of rejection was that they were not made in the presence of the defendant; in which case, they would have been evidence, not as the declarations of James, but as the admissions of Henry. If, in fact, James was dead at the trial, and the declarations were made by him, while in possession of the land, it is much to be regretted that the plaintiff did not have those facts inserted in the case. They would have raised the question debated here — whether they could have been heard against James' own previous deed to his son, and his occupation under him. But we cannot enter into that, because at present we must take it that those declarations were not competent upon the general principle.

Upon the point made on the judge's charge, the statements of the case are more defective even than on that relating to the evidence. It sets forth that "the defendant contended that if his deed was (9) fraudulent, he had been in possession under it for more than seven years, and had thereby rendered his title valid." But it does not give the facts. It does not state the period of the purchase by the lessor of the plaintiff, or of the execution of the deed to him; nor the period of the defendant's purchase, and of his possession. The appellant must state, or cause to be stated, the facts on which the question is raised in the decision of which he assigns the error of the court below. Without the facts, the opinions of the court assume the character of mere abstract propositions, and, however erroneous, since they cannot be connected with the rights of the parties, a verdict which settles those rights upon the merits ought not to be disturbed. We cannot reverse a judgment because it does not appear to be right upon the merits. It must be affirmed unless it appear to be wrong. It is the province of the party to set down his case and exceptions truly, or to procure them to be set down by the judge. It is but common charity — not to say justice — to the judge to affirm that he will state, or permit to be stated, every fact, consistent with the truth, which the parties deem material to the point of the exception. Certainly a revising court is confined to the facts stated, and can no more imply others than it can presume those set forth not to be true. Where there are no facts stated, there can be no error found as having been committed at the trial. For then the facts are to be taken as alleged in the pleadings, and found in the verdict, so that the only error open for discussion here would be one assigned in arrest of judgment.

In the present case, therefore, the judgment must be affirmed, because from the case stated enough does not appear to enable this Court to determine whether the opinion of the Superior Court — which, taken in reference to one probable state of the facts, is deemed right — is (10) erroneous, because the fact, not appearing, was otherwise. The furthest we can go is to take the fact to be as assumed by the presiding judge in the opinion given: which is always very unsatisfactory, because it is often difficult, and is so here, to determine what the assumption is.

The court first instructs the jury that although the deed to the defendant was fraudulent, yet if he had been in possession seven years under it, they ought to find for him. Now whether this be true or not depends upon the fact whether the defendant's possession was before or after the sale by the creditor; and that does not appear, or, at least, very indistinctly and by implication. It is the opinion of this Court that a fraudulent deed is void to all purposes as against a creditor, and will no more bar him as color of title than as a conveyance. The possession of a fraudulent grantee cannot be set up against the creditor defrauded. If it could, the period employed in establishing the debt might render it, when established, of no value. Until a sale by the creditor, there is no right or title to the thing fraudulently conveyed; there is no right of entry into or of action for the thing. Before such right accrues, the statute does not run. Peterson v. Williamson, 13 N.C. 326. It may be here that the possession of the defendant was in part, or even wholly, before the sale to the lessor of the plaintiff. But if it was, it does not appear, and the judgment cannot be reversed upon the ground that possibly it was erroneous.

Indeed, from the succeeding instruction, we suppose it probable that the possession was after the lessor of the plaintiff's purchase. The instruction is that from the time of the purchase the possession of the defendant was adverse to the lessor of the plaintiff, whence it may be inferred thatsuch an adverse possession was the one contemplated by the court. And the opinion of this Court is that upon that state of facts the (11) instruction was right. For the reasons given by the Chief Justice, in Davidson v. Frew, ante, 3, the sheriff's deed relates, for the purchaser's benefit, to the sale. By parity of reasoning it is so, when that relation operates against him. In both instances, the effect flows from the nature of a power or authority, and interests derived from the execution of them. Lord Mansfield has said, long ago, that since powers of appointment, or revocation and appointment, have been commonly inserted in deeds, and the execution of them a common mode of assurance, the power must be regarded as the estate, within the statute of limitations. Were it not so, the statute might as well be repealed; for it would be evaded, simply by creating a power. I do not mean that the power must be executed within seven years at all events. For the possession, for instance, of a grantee in a deed, which reserves a power to the grantor, or confers one on a third person, or the possession of the heir at law, where a power to sell is given by will, is consistent with the power, and not adversely to it. But where the possession is in one claiming against the power, and also adversely to the estate upon which the power is to operate, the power will be barred, as well as the right itself. For when the estate is gone, the power becomes, necessarily, extinct.

In precise analogy with this is the case of a purchaser at a sheriff's sale. The sheriff can convey immediately after the sale, and if the purchaser will delay taking his deed, it is his own folly. It is immaterial whether the sheriff's deed operates by way of passing a title that was in himself, or by way of executing an authority to pass that title which was in the debtor. The title is somewhere, and be it where it may, the possession of another, under a distinct title, is adverse to it. There is nothing left upon which the authority vested in the sheriff can work. Against the creditor, it is true, that no length of time will be a bar, because he has no specific right in the thing, and because it would be an obstruction to the statutes against fraudulent conveyances. It is likewise true that the purchaser has not a legal title until he gets (12) a deed. But he has an inchoate right by his purchase, which is the principal ingredient of his title, and he has a perfect right to call for a conveyance, which the sheriff hath power to make, which will complete the title. No reason of policy or justice authorizes a delay in perfecting his title to the specific thing purchased. But the peace of society, the security of titles, and every other consideration which induces the enactment of statutes of repose, demand that he should complete and enforce his title, within the time prescribed for other legal proprietors.

Supposing this to be the real case here, the judgment is affirmed, because it is approved by this Court. If the fact be otherwise, it must likewise be affirmed, because enough is not stated to exhibit the error.

PER CURIAM. Judgment affirmed.

Cited: Hoke v. Henderson, post, 16; Testerman v. Poe, 19 N.C. 105;Thomas v. Alexander, ibid., 385; Honeycutt v. Angel, 20 N.C. 449; Dobsonv. Erwin, ibid., 341; Flynn v. Williams, 29 N.C. 38; Presnell v. Ramsour,30 N.C. 507; Brown v. Kyle, 47 N.C. 443; Rogers v. Wallace, 50 N.C. 185;Taylor v. Dawson, 56 N.C. 92; Woodley v. Gilliam, 67 N.C. 239;Cowles v. Coffey, 88 N.C. 343; McArtan v. McLauchlin, ibid., 393;Ellington v. Ellington, 103 N.C. 58; Seals v. Seals, 165 N.C. 409.