Citation Numbers: 23 N.C. 149
Judges: DANIEL, J., after stating the case:
Filed Date: 6/5/1840
Status: Precedential
Modified Date: 1/12/2023
The land in controversy belonged originally to James Latta. He, in 1818, conveyed it to his son, John Latta, though there was a dispute on the trial whether this deed had ever been delivered. In 1823 John Latta voluntarily, and without any consideration, conveyed (150) the land to several persons by the name of Case, who were the other lessors of the plaintiff. In 1834 some of the heirs at law of James Latta filed a bill in equity, under the act of Assembly of 1812, 1 Rev. Stat., ch. 85, sec. 7, for the sale of all the lands which had descended to them from their ancestor, and that the purchase money might be divided among the heirs. To this bill John Latta was made a party defendant. There was an interlocutory decree that the master should sell the lands and report to the court. The master sold several tracts of land, and amongst others, the land in controversy, as land which had descended from James Latta to his heirs; and he made his report accordingly to the court, which was confirmed. John Latta was present at the master's sale of the land, and did not dissent, but had an agent bidding for himself. The Cases were present at the master's sale, and gave notice of their deed from John Latta, and claimed the land as belonging to them under the said deed. The defendant being the best bidder, purchased the land for a valuable consideration; and the court ordered a deed to be made to him for the land, which the master executed, and he took possession. The court charged the jury that under this state of facts the law was with defendant, and that the plaintiff was not entitled to recover. There was a verdict and judgment for the defendant, and the plaintiff appealed.
If John Latta, instead of the master, had made a conveyance of the land to the defendant, for a full *Page 118
and valuable consideration, the title would have passed; and the prior deed from John Latta to the Cases, being voluntary, would, as to the defendant, have been deemed void by force of the statute of 27 Elizabeth, 1 Rev. Stat., ch. 50, sec. 2; and the circumstance of the purchaser having notice of such a voluntary deed at the time of his purchase would make no difference. There have been many decisions, both in England and this country, establishing these rules of law. If (151) the heirs of James Latta had filed a petition for the partition of the lands descended to them, and the land in controversy, with the other lands mentioned in the master's report, had been partitioned by commissioners among the heirs (John being one), and the report confirmed and a decree had, then John Latta would have been estopped to claim contrary to such a decree, Mills v. Witherington,
PER CURIAM. Affirmed.
Cited: Weston v. Lumber Co.,
(152)