Clerk's Record of the Trial

North Carolina Archives Box No. CR07.325.136
Civil Actions Concerning Land (1823 folder)

Upon the trial, the plaintiffs produced a grant from the State to ROBERT CHEEK THE ELDER bearing date the 13th day of March 1780 for the Land Mentioned in the declaration & butted & bounded as therein described which is represented in the plat filed by the letters & lines ABDFGHK & L. He also produced a deed from JOSIAH TURNER, Sheriff of Orange to JOHN MCKERRALL THE LESSER & the plaintiff whereof a copy whereof a copy is as follows (Here insert the Deed):

And he also shewed a Judgment in Orange County Court rendered at August Term 1817 in favor of CHARLES JONES against ROBERT CHEEK SENR. for $210 & costs of suit & another Judgment in Orange Superior Court rendered at September Term A.D. 1817 in favor of RICHARD CHEEK against the same ROBERT CHEEK SENR. for $100 with interest thereon from 20th September 1817 & for costs of Suit & an Execution issued from the County Court upon the said judgment therein rendered, whereof a copy is as follows (here insert the execution) upon which the sheriff made this return (here insert the return) and he also produced an Execution issued from the Superior Court upon the said Judgment therein rendered whereof a copy is as follows (here insert the execution) upon which the Sheriff made this return (here insert the return.) The defendant admitted himself to be in possession of the Lands described in the plat by the Letters ABCMEFJKL [JAMES CHEEK's part of the original 300 acres, according to the platt] & the Lessor of the Plaintiff admitted himself to be in possession of the Lands CDE & M. [ROBERT CHEEK, Sr.'s land's according to the plat 114 9/10 acres.]

The Defendant then [material struck out: "called witnesses to prove that thirty years before the said [?] JAMES CHEEK had purchased from his father"] produced a judgment in Orange County Court against JAMES CHEEK & an Execution under which the Lands ABCMJK & L [JAMES CHEEK's part of the plat] had been levied on and sold by the Sheriff on 21st February 1818 as the property of JAMES CHEEK & purchased by WILLIAM KIRKLAND to whom the sheriff conveyed them by Deed bearing date in August 1820 which were all offered in evidence.

The defendant then called witnesses to prove that upwards of thirty years ago the said JAMES CHEEK had purchased from his father the said ROBERT Senr. the said tract ABCMJK & L & paid him for it; that he then entered into possession & they had it surveyed & the line CM & J run and marked between & that JAMES had ever since lived on it & occupied it exclusively as his own; and the defendant admitted that the said Land was liable to be sold on Execution as the property of said JAMES: But the Court rejected the Evidence of any agreement between said ROBERT & JAMES whereby the said JAMES became the purchaser of the said Land unless the same were actually conveyed by Deed -- upon the ground that, such evidence would not whe the legal title to be out of the plaintiff which alone could be regarded in this action:--

The Defendant then alledged that the said three pieces of land described in the plat were seperated & distinct from each other & that MCKERRALL had only purchased the parcel CDE & M & that the two other tracts, ABCJK & L and EFGHJ & M [denoted ROBERT CHEEK (Jr)'s land in the plat] were not parcel of the Tract so purchased by MCKERRALL -- And to prove the said point, the defendant called,

1. JAMES CHEEK, who proved that upwards of thirty years ago, his father had settled him on the said Tract ABCMJK & L; that the line CMJ was then run as the dividing line between them; that the said JAMES had never received a deed, but his father had been always ready to make one; that he the said JAMES had lived on the Land ever since up to the time of the Sale, had always entered it as his taxable & paid the taxes, had voted & served as a Juror, as a Freeholder by virtue of it & that his father had never during the said period claimed any interest in the said tract or occupied any part of it -- that the said dividing line was well known in the neighborhood generally & that the said Tract of which he was in possession, was generally known & called his JAMES' place or Land; and that about 15 or 16 years before MCKERRALL bought, his father had settled another of his sons viz ROBERT CHEEK, JUNR on the Land EFGHJ & M & run the dividing line EM between them & that in relation to that the acts of the parties afterwards were the same as those respecting the tract on which JAMES lived & that the said piece EFGHJ & M was well known by all the neighbors as the Land & place of ROBERT CHEEK JUNIOR & That in the family & neighborhood, the piece CDE & M supposed to contain 125 acres & was known & called the Land & place of ROBERT CHEEK the elder.

2. ROBERT CHEEK, JUNR & JOHN CHEEK, who were likewise sons of the said ROBERT the elder & proved the same facts as those stated by JAMES CHEEK. They further proved that they were present at the sale when MCKERRALL bought & that JOHN CHEEK bid for the Land & told BILBO the deputy sheriff which was the parcel that belonged to the old man, his father, & that it was the place old ROBERT lived on & was supposed to contain 125 acres has been so given in by him for taxes for many years That BILBO set it up for sale as the Tract being the place whereon he lived & as containing about 125 acres more or less & that nothing was said about including the places where JAMES & ROBERT JUN. lived & which were called & known as their places; that they understood the tracts CDE & M only to be set up & so bid for it; that during the sale MCKERRALL come to JOHN CHEEK & told him not to bid for that he MCKERRALL was bidding for him & that accordingly JOHN CHEEK stopped bidding & MCKERRALL bought the land-- that afterwards JOHN CHEEK told MCKERRALL that he did not want the land for himself but for his brother RICHARD & MCKERRALL said that he thought JOHN wanted it for himself & that as such was not the case, he should keep it for himself MCKERRALL. (To be added A) [see below]

3. THOMAS BILBO proved that he was the deputy sheriff who made the sale to MCKERRALL; that when he levied the Execution & sold he intended to include all the Land that old ROBERT CHEEK owned & [?] his interest -- that he did not know anything of the titles by which ROBERT the elder or JAMES or ROBERT JUN. held the Lands, nor of the bounds of the respective parcels, but that he knew that all of them lived on the lands as described in the plat & that JAMES & ROBERT JUNIOR claimed the pieces respectively on which they did live -- that he does not recollect how he was informed that old ROBERT's tract contained 125 acres, but believes he got the information wither from his Tax list or from one of the family -- that he set up for sale as the land of ROBERT CHEEK the elder, whereon he lived & all his interest therein; that he knew that JAMES & ROBERT JUNR. lived on the other parcels & tho he sold all old ROBERTs interest in his Tract of land, did not think that young ROBERTs & JAMES' were included for he then thought they were the legal owners of those pieces & in siting up the land, he described it as the place where ROBERT lived, supposed to contain 125 acres more or less & did not describe it as including the places where JAMES or Young ROBERT lived --

4. THOMAS D. WATTS proved that he bid for the Land & that he understood the description to include only the piece whereon the old man lived & not the places where JAMES & ROBERT JUNR resided, tho he did not accurately known the respective boundaries of the different parts -- that nothing was said about the places where the two latter lived, but only of that where the old man lived.

5. JOSIAH TURNER proved that he was Sheriff & was present when BILBO, his deputy, made the sale & deposed to the same effect that WATTS did. He further proved that MCKERRALL brought him a deed shortly after for his execution in which the land was described by metes & bounds & as containing 300 acres & that he refused to execute it because of the quantity & stated to MCKERRALL that only 125 acres had been sold -- that he knew nothing of the actual boundaries of the whole tact or any of its parts & that MCKERRALL afterwards brought the Deed of which a copy is before stated, in which the land was described as containing 125 acres by metes and bounds would cover -- that JAMES CHEEK & Young ROBERT had lived many years on the places marked in the plat as theirs & that he had thought they respectively owned them, but that he knew nothing of the titles certainly but only by supposition & the common understanding & report that they were theirs -- The defendant then showed another Judgment against ROBERT CHEEK SENR at March Term 1818 of Orange Supr Co. & an Execution thereon under which the Sheriff sold the Land ABCMEFGHJK & L as the property of said ROBERT, SENR & the same was purchased by the said KIRKLAND, to whom the sheriff conveyed it by Deed bearing date 7th Augst 1820.

The Judge in his charge to the Jury stated that it appeared that all the then pieces of land had originally been one Tract whereof the title was in ROBERT CHEEK the elder & he had never actually conveyed to his sons or either of them & that all the interest of the said ROBERT the elder had been sold & conveyed by the Sheriff to MCKERRALL and that altho it was described at the sale as containing 125 acres more or less yet his legal interest extended to the whole tract of 300 acres & the Sheriff conveyed it by metes and bounds that included the 300 acres , thereby the whole tract passed, tho called in the deed 125 acres more or less; and he further charged the Jury that under those circumstances the said Sheriff's deed was the highest evidence of what land was sold, notwithstanding the testimony of the said witnesses & that the said Deed was conclusive evidence of the plaintiff's right & entitled him to recover.

To be added to the case at A -- ROBERT CHEEK JUNR further swore that his father had several times offered to make him a Deed for his parcel, but that he told the old man that he Did not want a Deed then that he could get one at another time or have the land as his own when his father died.

Decision of the
North Carolina Supreme Court

Den on demise of M'Kerall
v.
Cheek, tenant in possession, and Kirkland, landlord.

2 Hawks 343, 9 N.C. 343, 1823 WL 216 (N.C.)
June Term, 1823.

A Sheriff's deed for 300 acres of land was offered in evidence. It was proved, that the Sheriff intended to convey but 125 acres, that he was ignorant of the courses of the land, and that he would not have signed the deed if the courses had not been inserted in such way as to deceive him with respect to the quantity. The Court below held the deed to be conclusive; this Court grants a new trial, because the Judge should have left it to the Jury to say whether the deed was fairly or fraudulently obtained, for a Court of Law has cognizance of the question, as well as a Court of Equity.

Ejectment. The lessor of the Plaintiff, to support his title, produced a grant from the State for the land in dispute, (A. B. C. D. E. F. G. H. I. K. L.) to ROBERT CHEEK THE ELDER, bearing date 13th March, 1780; a judgment in Orange County Court, obtained August Term, 1817, against ROBERT CHEEK THE ELDER, and execution thereon, a judgment in Orange Superior Court, at September Term, 1817, against ROBERT CHEEK THE ELDER, and execution on it, and the Sheriff's deed to himself, dated 27th February, 1818, describing the land by the boundaries of the original patent, and purporting to convey 125 acres of land.

The Defendant admitted himself to be in possession of all the lands except those included in the lines C. D. E. M.; of that part the Plaintiff was in possession.

The Defendant produced a judgment in Orange Court against JAMES CHEEK, and an execution under which the lands A. B. C. M. I. K. L. had been levied on and sold by the Sheriff to WILLIAM KIRKLAND, by deed dated in August, 1820.

He shewed, also, another judgment against ROBERT CHEEK THE ELDER, at March Term, 1818, of Orange Superior Court, an execution thereon, and a sale by the Sheriff to WILLIAM KIRKLAND, of the lands A. B. C. M. E. F. G. H. I. K. L. as the lands of ROBERT CHEEK THE ELDER, on the 7th of August, 1820.

The Defendant then called witnesses to prove, that more than 30 years before, JAMES CHEEK had purchased from ROBERT CHEEK THE ELDER, the tract A. B. C. M. I. K. L, paid him for it, entered into possession, had it surveyed, the line C. M. I. marked between them, and that JAMES had ever since lived on it, and occupied it exclusively as his own. The Court rejected the evidence of any agreement between ROBERT and JAMES, whereby JAMES became the purchaser, unless the land were actually conveyed by deed, upon the ground that such evidence would not shew the legal title to be out of the Plaintiff, which alone could be regarded in this action.

The Defendant then alleged, that the three pieces of land in the plat were separate and distinct from each other, and that M'KERALL had only purchased C. D. E. M.; and to prove this point he called several witnesses, from whose testimony it appeared, that the portions of land described in the Diagram as JAMES and ROBERT'S lands, were sold to them respectively many years ago, by their father, OLD ROBERT CHEEK; that no deeds were executed, but that they had exercised over them acts of ownership ever since they purchased; that their boundaries were clearly marked out, and that it was the general understanding through the neighbourhood, that ROBERT CHEEK THE ELDER owned only C. D. E. M. The officer who sold the land described it as the place where OLD ROBERT CHEEK lived, and all his interest therein, supposed to contain 125 acres, more or less; he did not think it included the lands on which JAMES and ROBERT lived, nor did he so represent it, and the Sheriff, when requested to sign a deed describing the land by metes and bounds as containing 300 acres, refused to do so, from a belief that only 125 acres were sold.

The Court charged the Jury, that it appeared all the three pieces of land had originally been one tract, whereof the title was in ROBERT CHEEK THE ELDER, and he had never actually conveyed it to his sons, or either of them, and that all the interest of ROBERT THE ELDER had been sold and conveyed by the Sheriff to M'KERALL; and, that although, at the sale, it was described as containing 125 acres, more or less, yet his legal interest extended to the whole tract of 300 acres, and the Sheriff had conveyed it by metes and bounds which included the 300 acres, whereby the whole tract passed, though called in the deed 125 acres, more or less. And that under these circumstances, the Sheriff's deed was the highest evidence of what land was sold, notwithstanding the testimony of the witnesses, and that it was conclusive evidence of the Plaintiff's right, and entitled him to recover. Verdict for the Plaintiff, new trial refused, judgment and appeal.

HALL, Judge. It seems that the Sheriff conveyed the land in question not only without knowing it, but contrary to a determination he had made not to do it, because he considered that he had only levied upon and sold 125 acres, the land on which ROBERT CHEEK THE ELDER lived. Nor could he have been prevailed upon to convey it, if the course including it had not been inserted in a way calculated to deceive him, by estimating the whole amount conveyed at 125 acres, more or less; for he was altogether unacquainted with the courses. Design or fraud, practised upon innocence and ignorance in this way, ought not to have the effect to deprive men of their rights, and put it out of the power of Courts of Common Law to restore them. I do not concur in the opinion, that the deed executed by the Sheriff is conclusive and binds the title. I do not hesitate to say, that the rule for a new trial should be made absolute.

HENDERSON, Judge. Whether the deed of the Sheriff, fairly obtained, shall be conclusive on the parties and all claiming under them, we do not deem it necessary to decide, for we think a preliminary question fairly grows out of the evidence, which should have been distinctly propounded by the Judge to the Jury, namely, whether the deed was fairly or fraudulently obtained; for a Court of Law has cognizance of the question, as well as a Court of Equity. This question fairly arises upon the evidence; the Judge erred in telling the Jury that the deed was conclusive without evidence of what the Sheriff sold, without calling their attention to the circumstances under which it was executed, and informing them that it did not pass the lands in controversy, if fraudulently obtained.

TAYLOR, Chief-Justice, concurred, and a new trial was granted.