Summary
The State of North Carolina, by patent, No. 855, granted to William Branch a tract of 5000 acres of land, situated in Bedford county. At his death, it descended to bis heir at law, John Branch. At October term, 1794, of the court of pleas and quarter sessions, for Halifax county, North Carolina, Edward Crowell recovered a judgment against the administrator of William Branch for 500 pounds North Carolina currency. On the 29th of June, 1811, Crowell sued John Branch, as heir of William Branch, upon this judgment in the county court of Williamson county; and at October session afterwards, recovered judgment, by default, for $1000 debt, and $1015 damages, all of which he released except $649 40. To have execution of this judgment, afi. fa. was issued on the 21st of October, 1811, which the sheriff of Bedford levied on the 5th of December, on the land above mentioned; and returned the execution, with the levy endorsed, and that he had not time to advertise and sell. On the 21st of January, 1812, a venditioni exponas was issued, to which the sheriff made return that he had sold the land on the 21st of March, for $100, to John Warren, to whom he made his deed on the 30th of April, 1812, which was proved in the county court of Bedford at December session, 1812, and registered in the Register’s office there, on the 8th of March, 1813. Warren, by his deed of the 4th of July, 1815, conveyed this land to Joseph Branch. The deed was proved at April term, 1S1G, in Bed-ford circuit court, and registered on the 2?th of May, 1816. Having lost this land by the interference of older claims, and being about to obtain a warrantjobe located elsewhere, Joseph Branch executed the following writing to John Branch— “July 19th, 1820. It is understood between us, that John Branch is entitled to (12) twelve hundred acres of the warrant that is to be drawn, or the land when located, — subject, never theless, to the locator’s part to be taken from it, when ascertained and surveyed, — out of the grant granted to William Branch, after said John Branch pays his proportionable part of the expenses of said land.” Signed — “Joseph Branch.”
On the 2d of September, 1820, Joseph Branch, being at his residence in North Carolina, wrote to John Branch, advising him that he had that day, received a letter from H. H. informing him that he had drawn his warrants, but that a person, who had a demand against him, had threatened to stop them in fl’s hands by injunction, in order to subject them to that demand. He then remarks that he, John Branch, was acquainted with the particulars of the demand, and his evidence would be important; and in order to preserve the full weight of his evidence, he bad better not let any person know that he was interested in the warrants. He then continues — “I will be out, immediately after the locating takes place, and think you and myself can make a trade, so as for you to take the 640 acre warrant, I have got, for your interest in the k- "e warrant.”
In 1820, or 1821, Joseph Branch obtained grants for the lands which were entered in lieu of the 5000 acres lost. On the 4th of June, 1823, John Branch, for the consideration one thousand dollars, assigned, by an endorsement on the above quoted memorandum, all his right, title and interest therein to Jason Thompson.
Joseph Branch died in 1827 without making Thompson a title to the lands mentioned in the memorandum, having devised his real estate to his minor children; and on the 10th of October, 1S28, Thompson filed his bill in the chancery court at Franklin against Joseph Branch’s heirs and personal representatives and John Branch, praying for a specific execution of the contract evidenced by said memorandum. Before the trial, Thompson died, and the bill was revived in the names of his devisees and heirs.
The defendants, in their answers, declined admitting that any consideration had passed from John to Joseph Branch for the land mentioned in the paper of the 19th of July, 1820; and they called upon the complainants for proof; and in the absence of such proof, they insisted that a court of equity would not execute the contract implied therein, divesting them of title to 1200 acres of the land, and vesting it in complainants.
No proof of any consideration was adduced by the complainants.
On the hearing, on the 16th of November, 1838, his Honor Chancellor Bramlitt, dismissed the bill; and the complainants appealed in error.
insisted that it was not necessary in this case, as in ordinary cases, to prove a consideration. The paper itself acknowledges that John Branch was interested in the land granted to William Branch, ,his father. True, the land had been sold for a debt of William Branch; but it had been purchased for a trifle, and sold to Jossph Branch for a sum far less than its value: and the interest which was acknowledged to be in John Branch might have been founded on an agreement that if he would not disturb the proceedings under which the land had been sold, and which they alleged were irregular, Joseph Branch would convey to him some portion of the tract. However this might be, Joseph Branch’s letter, they said, was a delibreate acknowledgment, confirmatory of that contained in the paper sought to be set up by the bill; that John Branch had an interest in the warrants which had been drawn by Joseph Branch. It could not be necessary to prove a consideration to sustain ari undertaking to convey a part of a tract of land, by one of two persons to another, when both of them are acknowleding each other as jointly interested in the land, previous to the issuance of the(first muniment of title. Such an acknowledgment, they insisted, was evidence that they both contributed the means whereby the property had been procured and consequently were at least equitable tenants in common.
insisted that there being no proof of any consideration, and the paper itself not implying any, there was no principle upon which the court could be called upon to set up the instrument and give the complainants a specific execution of it. They cited Coleman v. Sarrell, 1 Ves. Jr. 50, 54, 55.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
