Ashe County NcArchives Court.....George Blevins, S. C. Waugh, Adm'r, &c. V. 1873
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Connie Ardrey n/a November 8, 2011, 5:47 pm

Source: N C Reports
Written: 1873

S. C. Waugh, Adm'r, &c. v. George Blevins

A paper in writing, not under seal and unregistered, which has been 
surrendered to the grantor by the alleged grantee, prevents any title resting 
in the grantee. And such paper writing, passing no title, could do no more 
than raise an equity which the grantee had a right to surrender, unless it was 
done to defraud creditors.

The act of 1846, chapter 46, section 53, gives administrators express 
authority to sell all the interest of a deceased debtor in land possessed by 
him, whether legal or equitable; and also authorizes the administrator to sell 
any land his intestate may have conveyed for the purpose of defrauding 
creditors.

Civil Action, tried before Mitchell, J., at the Fall Term, 1872, of Ashe 
Superior Court.

The plaintiff, as administrator of one David Blevins, had filed a petition in 
the proper Court to sell the land of his intestate to pay debts. The sale was 
regularly ordered, and when it took place the defendant objected to it, 
claiming it as his own. The land concerning which this action was brought sold 
for $5. The case, as made up, states that "the plaintiff then brought this 
action to try the issue raised."

It was in evidence on the trial that Eli Blevins, the father of the 
plaintiff's intestate and the defendant, owned the land and had agreed to give 
it to the defendant and the intestate, but before he made any deed or other 
writing to them, the defendant sold his part of it to David, the plaintiff's 
intestate, and he paid him for it, the defendant and David agreeing that their 
father should make the deed to the latter. The father, Eli, did execute and 
deliver to David, the intestate of the plaintiff, a paper writing, but it did 
not appear affirmatively what land it did convey; it being stated by two 
witnesses that they saw the paper and thought it was for another tract; that 
the paper had no seal, and that they, the witnesses, told David it was no 
account. David, the intestate as aforesaid, entered on the land and resided on 
it until he left the county, and then he left his wife on it, who continued to 
live on it until dispossessed by defendant.

This paper was left by David in the hands of one Susan Blevins, with 
instructions to return it to his father should he, David, never call for it. 
He never called and she gave it to the father, Eli, who then made a deed to 
the same land to defendant. Eli and David are both dead, the defendant being 
the administrator of the former and the plaintiff of the latter.

His Honor instructed the jury that they must find the character of the paper 
made by Eli to David; that unless it waas a deed and under seal the plaintiff 
could not recover.

The plaintiff insisted, that whether it was an instrument under seal or not, 
yet if they believed the old man Eli knew of the arrangement between David and 
the defendant, and that David had paid the defendant for the land, and he, 
Eli, intended to carry out the arrangement by conveying the title to David, 
the plaintiff would be entitled to recover. The plaintiff further insisted 
that if the jury found the facts as stated, the subsequent conduct of the 
defendant in obtaining a deed from his father would be such fraud as would 
entitle the plaintiff to a decree at law for a one-half of the land.

The jury returned a verdict for defendant. Judgment against the plaintiff for 
costs, from which judgment he appealed.

Todd & Folk, for appellant
Trivett & Furches, contra

NC Supreme Court Justice Boyden, J. - The plaintiff has failed to state in his 
complaint, or to prove on the trial, a case entitling him to recover the land 
in controversy. It was clearly established on the trial that the paper writing 
had no seal to it, and the proof left it in doubt whether it even covered the 
land in dispute, but having no seal, it could not pass the title and could do 
no more than raise an equity, which David had a right to surrender, unless 
this was done with a view to defraud his creditors.

Then as to the paper alleged to have been a deed from Eli to his son, David, 
this question was submitted to the jury and they found, under the charge of 
his Honor, to which no objection was taken, that said paper writing was not a 
deed, and there was no allegation that there was any pecuniary or other 
consideration given for the same, and the complaint states it as a gift, and 
this paper having been re-delivered to Eli by the direction of David, neither 
David or his creditors can have any claim to enforce a specific performance of 
that agreement, whatever it might have been. (see court case for judge's full 
findings)

There was no error
This will be certified
Per Curiam
Judgment affirmed

Additional Comments:
In the NC Supreme Court Jaunary Term 1873

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