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

The bill in this case was brought by the plaintiff as trustee, 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 authorized by Assembly, bid off the land in question and took the certificate of purchase in the name of the plaintiff, at the (408) time paying one-eight 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 1842 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, 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 him (defendant), there remained but 13 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 he may be ordered to convey the premises either to the (409) plaintiff or to the cestui qui trust.

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. 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 the plaintiff. Following 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 in 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 the 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 (410) 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.

Cited: Clayton v. Cagle, 97 N.C. 303.