BURKE CO. NC
COURT RECORDS
 

"Reports of cases at law argued and determined in the Supreme Court of North Carolina" by Thomas P. Devereux and William H. Battle, Vol.I (spine title "No. Carolina Reports [Vol.] 18 - Devereux & Battle's Law, Vol.I); Vol.18, pgs.440 to 442; reprinted? on pgs.437-438 (California State Law Library, Sacramento, 1/2004)   AND   "NC Reports" Vol.18, 1834-1836 pg.437-438 (NC Archives, Raleigh, NC, 10/1985; MAD's extract; original court papers not in Archives)
      MAD: These are a series of volumes of extracts of Supreme Court decisions which can later be cited in other court pleadings. Each volume is indexed by the names of the plaintiffs and defendants. Most states have a set of similar volumes for that state, usually found in law libraries. These references were found for me by Mrs. Grace Turner of Wilson, NC. The NC Archives has a master index on microfilm to all the cases for which it has the original documents filed with the court. It does not always have the originals.
      ROLAND DUNCAN v. WILLIAM STALCUP; Supreme Court of North Carolina; 18 N.C. 440; 1 Dev. & Bat. Law 440; June, 1836, Decided.
      In the action of trespass "vi et armis," for the destruction of or injury to chattels, the jury are not restricted in their assessment of damages to the mere pecuniary loss sustained by the plaintiff, but may award damages for the malicious conduct of the defendant, and the degree of insult with which the trespass was committed.
      Trespass Vi Et Armis, for shooting the plaintiff's dogs and cattle, killing his horses and hogs, and burning his stables and fodder stacks.
      On the trial, before his Honor, Judge Strange, at Burke [County], on the last circuit, the plaintiff having proved his case, the jury were instructed, that in assessing damages, (441), they were not restricted to the actual value of the property destroyed, but might in their discretion award vindictive damages. A verdict being returned in favor of the plaintiff for $500 damages, the defendant moved for a new trial upon the ground that the jury should have been directed to limit the damages to the actual injury which the plaintiff had sustained, and instructed that they were not at liberty to give vindictive damages. The rule for a new trial was discharged, and the defendant appealed.
      The defendant moved for a new trial, because the Judge had charged the jury, that they might give vindictive damages, under all the circumstances, when in law he should have directed the jury that the damages should be restricted to the actual injury which the plaintiff had sustained. The counsel for the defendant now contends, that the case contains no circumstances to show that vindictive damages should be given; ...
      In looking into the books, we find the rule in this action to be, that the jury are not restricted in their assessment of damages to the amount of the mere pecuniary loss sustained by the plaintiff, but may award damages in respect of the malicious conduct of the defendant, and the degree of insult with which the trespass was committed. The plaintiff is at liberty to give in evidence the circumstances which accompany and give character to the trespass. In trespass quare clausum fregit, the jury are not confined to the precise value of the subject-matter of damages, although they are not allowed to go out of the way to an unreasonable amount. In trespass to the person, the jury are permitted to punish insult by exemplary damages. In Woert v. Jenkins, 14 John. Rep. 352, it was held, that in an action of trespass for beating the plaintiff's horse to death, the jury might give damages beyond the value of the horse, or smart money, there being proof of great and wanton cruelty on the part of the defendant. In the case now before the Court, it is scarcely possible that the trespasses complained of could have been committed without wanton malice and insult. If, in truth, the circumstances attending them were such as to render the instruction of the Judge, which was prima facie correct, inapplicable, then the defendant who excepts to the instruction, should have had those circumstances so spread upon the record, as to enable us to see that error was committed. The judgment must be affirmed.
      PER CURIAM. Judgment affirmed.
 

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, June term 1840 to June term 1841, both inclusive" by James Iredell, Vol.I (spine title "No. Carolina Reports [Vol.] 23 - Iredell's Law, Vol.I); Vol.23, pgs.466 to 469 (California State Law Library, Sacramento, 1/2004)
      DEN ex Dem. (on demise) MARY DUNCAN vs. ROLAND DUNCAN; Supreme Court of North Carolina; 23 N.C. 466; 1 Ired. Law 466; June, 1841, Decided.
      This was an appeal from the judgment of the Superior Court of Law of Burke county, at Spring Term, 1841, his Honor Judge BATTLE presiding, ordering an award which had been made in the case to be set aside. Three several suits were pending between these parties, of which one was an action of Trespass quare clausum fregit, another an action of trespass on the case in assumpsit, and the present action of ejectment. They were, by separate and distinct rules of court, referred to the same persons as arbitrators, who returned, so far as regards this case, the following award: "In the case of ejectment, we find the plaintiff in the case, Mary Duncan, has at various times paid to Roland Duncan in cash, notes and property valued fifteen hundred and forty four dollars. We therefore award to her three-fourths of the whole amount of land purchased of the executors of Chas. Finlay, dec'd, to be taken off of the upper part of said land." To this award the defendant filed the following exceptions: "The defendant excepts to the award made in the several cases named in the said award, 1st, because the referees have embraced in their award questions not submitted to them; 2d, because the award is vague and uncertain; 3d, because they have not awarded on all the matters submitted to them." The exceptions, so far as they relate to the present case, were sustained by the court upon the ground that the arbitrators had exceeded their authority in assuming to decide upon what part of the land in controversy the plaintiff's lessor should take the share, to which they found she was entitled. the award was accordingly ordered to be set aside and the lessor of the plaintiff, by permission of the court, appealed from this order.
      (MAD: arguments of counsel omitted here)
      (opinion) GASTON, J. In the case made for the consideration of this court, it is stated that the exceptions taken by the defendant to the award, returned by the referees, were sustained by the court and the award set aside. If we are to understand by this, that the court decreed that the plaintiff should not be permitted to avail herself of that award in any way, either by action or by a bill in equity, we should hold such decree erroneous; first, for that it transcended the jurisdiction of the court, and secondly, because, though the award might not be warranted by the rule of reference, non constat but that there was a more extensive submission, that might render it available between the parties. But we do not so understand the act of the court. By a rule of court in this cause the matter therein depending was referred, and the award, if sanctioned by the court, was according to our practice to become a judgment. Exceptions were made to it, as an award under that rule, and the court sustained these exceptions, and set it aside so far as to refuse to render a judgment thereon. In doing this we are of opinion there was no error.
      There are objections to the award, which we think insuperable. The submission can be understood as extending no further than to the matter disputed in the suit -- the right of the plaintiff to the possession of the premises described in the declaration. Under this submission, the referees "find that the plaintiff Mary Duncan has paid the defendant Roland Duncan $1544, and therefore award to her three fourths of the whole amount of land purchased of the executors of Charles Finlay deceased, to be taken off of the upper part of said land." What is the land purchased from the executors of Finlay? There are eight distinct tracts set forth in the declaration. Are all these embraced within this description? If not all, which of them are comprehended therein? The award is wholly uncertain in this respect -- and nothing appears whereby that uncertainty can be removed.
      But they award to Mary Duncan three-fourths of this land, "to be taken off of the upper part." From the strong disposition which Courts feel to support awards, and the consequent liberality in expounding them, an award to Mary Duncan of the land described in the declaration, or any defined part thereof in severalty, or of any undivided share thereof, might be understood, by reference to the action, as a finding that judgment be rendered for the whole, or such part, or such undivided share. But they award three-fourths, to be taken off of the upper part. This cannot be done by a judgment in ejectment. How is it to be done? It must be by some future action of the parties. And when we connect this future action with the introductory part of the award, setting forth that Mary Duncan has paid so much on account of the land, we are obliged to understand that the referees intended to decree that the defendant should convey such an interest. So understood, the award goes beyond the rule of reference.
      It has been argued that judgment may be entered for the three undivided fourth parts, disregarding the direction that they be taken off of the upper part of the land. But this we cannot do, for it would be to alter the award. It does not consist of two distinct matters -- the one within, the other without the submission -- but it is one indivisible award, and judgment must be rendered in pursuance thereto or not at all.
      PER CURIAM, Ordered that this opinion be certified to Court below.
 

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, December term 1842 to June term 1843, both inclusive" by James Iredell, Vol.III (spine title "No. Carolina Reports [Vol.] 25 - Iredell's Law, Vol.III); Vol.25, pgs.317 to 319 (California State Law Library, Sacramento, 1/2004)
      JOHN DEN on the Demise of POLLY DUNCAN vs. ROLAND DUNCAN; Supreme Court of North Carolina; 25 N.C. 317; 3 Ired. Law 317; June, 1843, Decided.
      Appeal from the Superior Court of Law of Burke County, at Spring Term, 1843, his Honor Judge NASH presiding.
      The lessor of the plaintiff had made a contract for the purchase of the land in controversy in this suit -- had given her obligation for the purchase money, and had been in possession since the date of the purchase; but had received no deed. The purchase money was not paid and is not yet paid, and when the obligation came to maturity, she was sued by the obligee, her vendor, and a judgment obtained. An execution issued and was levied upon the land, and at the sale Mr. McKesson became the purchaser, who took a deed from the sheriff, and subsequently sold the land to the defendant, the brother of the lessor of the plaintiff. The lessor of the plaintiff was in possession of the land, when the defendant, by his servants, entered and forcibly turned out her servants, who were ploughing the field, and took possession; leaving her in possession of the house, where she still is, and defendant in possession of the field, for which this action is brought. The Court instructed the jury that the lessor of the plaintiff had no such interest in the land as was the subject of a legal execution -- that her interest could not rightfully be so sold -- and what cannot rightfully be sold by execution cannot by such sale be rightfully acquired, and of course the purchaser could transfer no title to another. In this case McKesson acquired nothing, and transferred nothing to his alienee, the defendant, who was therefore a mere intruder, against whom the law would protect the possession of the lessor of the plaintiff, and she was entitled to a verdict. Judgment having been rendered pursuant to this verdict, the defendant appealed.
      (opinion) RUFFIN, C. J. If the defendant were a mere stranger and a wrong doer, as supposed by the Judge below, it cannot be held in this State, that ejectment can be maintained upon a naked possession, once had, when there is no presumption of a conveyance of the legal title, but it appears affirmatively to be in another person.
      But the defendant is not a stranger. It has long been held, that, as against the defendant in the execution, the purchaser need shew only the judgment, execution, sale and sheriff's deed. Such is the case when the purchaser brings ejectment against the defendant in execution; and it proceeds upon the principle, that whatever the debtor had passed under the execution sale, and that, as it had been sold for his debts, he ought not, for the purpose of defeating the purchaser, to say he had nothing in the premises. That principle is equally applicable to an action, brought against the purchaser by the defendant in the execution. If the debtor had any estate, the purchaser, of course, acquired it, and for that reason is entitled to hold. If the debtor had no estate in the land, then that person cannot maintain ejectment; for in that action the plaintiff must recover upon the strength of his own title, either as being, in itself, good against all the world, or good, by way of estoppel, against the defendant. Here it is admitted, that the lessor of the plaintiff had not the title; and it is equally clear that there is nothing to raise an estoppel in her favor. In fine the action rests upon two inconsistent propositions: that nothing passed to the purchaser, because the lessor of the plaintiff had nothing in the premises; and yet, that she had an interest and estate at the sale, and, notwithstanding the sale, still has, which entitles her to recover.
      PER CURIAM. Judgment reversed and new trial awarded.
 

Original Supreme Court Papers, Case #3000, 1841 (from citation in "NC Reports" Vol.21?, 1841?; NC Archives, Raleigh, NC; MAD's extract; per dictionary, "demise" in law means the conveyance of an estate, chiefly by lease)
      MARY DUNCAN v. ROLAND DUNCAN, Burke Co. Bond of Mary (x) Duncan, Nimrod Elliott and John Duncan, to Roland Duncan for $200, undated; that in a suit by Mary Duncan against Roland Duncan in the Superior Court on 2nd Monday in May 1841, judgment was recovered by Roland Duncan; that Mary Duncan is appealing to the Supreme Court to be held 2nd Monday in June next.
      Transcript: Burke Co. Superior Court on 7th Monday after 1st Monday in September 1839, Writ and Ejectment filed; John Den complains of Richard Fen (Few?) in custody &c; that Mary Duncan, the first demise and the heirs of Charles Finley in the second on 1 Aug. 1838 at home in Burke Co. had demised granted and to farm let to the said Den land in Burke Co.: 100 acres on both sides of Thomas? Forks of Muddy Creek (gives description of all land parcels); 50 acres between Thompsons survey & Charles Finley's corner; 94? acres bounded by Alec? Thompson's and Jno. McDowel; 50 acres on north side of waggon road; 100 acres on a branch of Thompson's Creek on Dobsons line and corner; another tract (no acres) on north side of a hill; 50 acres bounded by Finley's line; 150 acres on north side of Thompson's fork; demised for ten years; that John Den entered the premises and occupied them until Richard Fee afterward on 10 Aug. 1838 ejected him.
            Mr. Roland Duncan. I am informed that you are in possession of a claim to title to the ??? and premises mentioned in this deed or action of ejectment or to some part thereof, and I being sued in this action as casual ejector and having no title to same, advise you to appear on 7th Monday after 4th Monday in Sept. next at courthouse in Morganton before Judge of Superior Court of Burke Co. ... and cause yourself to be made defendant in my stead. (signed) your loving friend, Richard Fen.
            Process endorsed, executed Oct. 24; entered on the appearance docket as Doe (Den?) & Mary Duncan vs. Roe & Roland Duncan; Roland plead not guilty; continued to 7th Monday after 4th Monday in March 1840; John Logan, Almy? Borgain? and James McDowell examined the witnesses in the various cases ... and make the following award: In the trespass case we find for plaintiff and assess damages to $80; State vs. Roland Duncan assault and battery, we find in favor of State and assess damages to $10; State vs. Roland & John G. Duncan assault & battery in this case we find the defendants not guilty; in the case of Ejectment we find the plaintiff in the case Mary Duncan has at various times paid to Rowland Duncan in cash, notes and property valued $1544; we therefore award to her three fourths of the whole amount of land purchased of the executors of Charles Findley decd, to be taken off the upper part of said land. October 27, 1840.
            Cause continued until 7th Monday after 4th Monday in March, 1841, when following record was made: leave given defendant to file exceptions to award; exceptions filed, award set aside; plaintiff appeals and gives for security Nimrod Elliot and John Duncan. The defendant filed exceptions as follows: (1) because the referees have embraced in their award questions not submitted to them; (2) because the award is vague and uncertain; (3) because they have not awarded on all matters submitted to them.
            The exceptions being filed were sustained by the court and the award set aside. The plaintiff prayed for and obtained an appeal to the Supreme Court, bond and sufficient security being given which is done.
            Case as made up by the Court: Den on demise of Mary Duncan, vs. Roland Duncan. Three several suits were pending between these parties of which one was an action trespass quan? clausum frigit, another an action of trespass on the case in assumpsit, and the present an action of ejectment and were by separate and distinct rules of court referred to the same persons as arbitrators who returned an award a copy of which is sent as part of this case. Exceptions to the award were filed by the defendent and in the present case the exceptions were sustained by the court upon the ground that the arbitrators had exceeded their authority in assuming to decide upon what part of the land in controversy the plaintiff should take the share to which they found she was entitled. The award was accordingly ordered to be set aside and the ??? of the plaintiff appealed.
            (MAD: Above transcript is the same in Case 3000 and in Case 3191)
      DUNCAN vs. DUNCAN. In this case made for the consideration of this court it is ??? that the exceptions taken by the defendant to the award returned by the referees were sustained by the court and the award set aside. If we are to understand by this that the court decreed that Plaintiff should not be permitted to avail herself of that award in any way, either by action or by a Bill in Equity, we should hold such decree erroneous, for that is transcending the jurisdiction of the court ... But we do not so understand the act of the court. By a rule of Court in this cause the matter therein depending was referred, and the award if continued by the court were according to our practices to become a judgment. Exceptions were made to it as an award under that rule, and the court ... (set aside the award).
            There are objections to the award which we think insuperable. The ... can be understood as extending no further than to the matter disputed in the suit -- the right of the plaintiff to the possession of the premises described in the declaration. Under this (submission?) the referees "find that the Plaintiff Mary Duncan has paid the Defendant Roland Duncan $1544, and therefore award to her three fourths of the whole amount of land purchased of the Executors of Charles Finlay deceased, to be taken off of the upper part of said land. What is the land purchased from the executors of Finlay? Named are eight distinct tracts set fourth in the declaration. Are all these embraced within this description? If not all, which of these are comprehended therein? The award is wholly uncertain in this respect -- and nothing appears whereby that uncertainty can be removed.
            But they award to Mary Duncan three fourths of this land "to be taken off of the upper part." From the strange? (strong?) disposition which court feel to support awards and the consequent liberality in expounding their award to Mary Duncan of the land described in the declaration, or any definite? part thereof in severalty or of any undivided share thereof might be understood by reference to the action that judgment be rendered for the whole, or such part, or such undivided share. But they award three fourths to be taken off of the upper part. This can not be done by a judgment in Ejectment -- how is it to be done? (more along this line, that the award cannot be altered to read that she be awarded three undivided fourths, so the award cannot stand).
 

Original Supreme Court Papers, Case #3191, 1839 (from citation in "NC Reports" Vol.20?, 1839?; NC Archives, Raleigh, NC; MAD's extract)
      MARY DUNCAN v. ROLAND DUNCAN. Burke County. (See Case #3000 above for first pages of transcript)
            A transcript of the foregoing case having been sent up to the Supreme Court, a decree was returned into this court which is in the following words & figures, to wit, June Term, 1843 (written below is 1841), Mary Duncan v. Roland Duncan. This cause came on to be argued upon the transcript ... this court is of opinion that there is no error in the order appealed from and it is considered and adjudged that the order is in all things affirmed, and that the defendant recover against Mary Duncan the lesee?? of the plaintiff, & Nimrod Elliot and John Duncan her securities for the appeal from the said order as appears by the appeal bond, the sum of $14.77 the costs in this court, and let execution issue and let this judgment be certified to the court in order that further proceedings may be had in the same court.
            The cause was carried forward to fall term 1841; and regularly continued from court to court until 3rd Monday after 4th Monday in March 1843; Mary Duncan vs. Roland Duncan, not guilty, nole prosequi as to the heirs of Findley; the jurors find the defendant guilty of the trespass in ejectment as charged pltffs declaration, and assess damages to six pence and costs of suit; from which judgment the defendant prayed an appeal to the Supreme Court which was granted, whereupon he filed a bond with Jesse T. Walton and John G. Duncan as securities for said appeal.
            Polly Duncan vs. Roland Duncan, Ejectment. Plaintiff has made a contract for the purchase of the land in controversy, had given her obligation for the purchase money and had been in possession since the date of her purchase but has received no deed. The purchase money was not paid and is not yet paid and when the obligation came to maturity she was sued by the obligee her vendor and a judgment obtained and execution issued and was levied upon the land and at the sale one McKesson became the purchaser who took a deed from the sheriff and subsequently sold the land to defendant the plaintiffs brother. Plaintiff was in possession of the land when defendant by his servants entered and forcibly turned out the servants of the plaintiff who was ploughing the field and took possession, leaving the plaintiff in possession of the house where she still is and defendant in possession of the field for which the action is brought. It was proved by the sheriff that when he went to make the levy plaintiff observed she supposed the land must go -- that it was sold at Morganton and that the plaintiff was in town that day but whether present at the sale could not say. It further appeared that the land consisted of various tracts held under different titles lying contiguous to each other, all of which were put up together and sold together. The court instructed the jury that the plaintiff had no such interest in the land as was the subject of a legal execution. That her interest could not rightfully be so sold and what cannot rightfully be sold by execution cannot by such sale be rightfully acquired and of course the purchaser could by his sale transfer nothing. In this case McKisson acquired and transferred nothing to his alien? the Deft. who was therefore a mere intruder against whom the law would protect the possession of the plaintiff and she was entitled to this verdict.
      Bond of Rowland Duncan and John G. Duncan and Jesse T. Walton, to Polly Duncan, for $200; that in the Spring term, 1843, of Burke Superior Court ... (bond for appeal of case) dated 20 April 1843. (wit. name illeg.)
      (Decision or summary of case; this document is separate) Polly Duncan vs. Roland Duncan. The lessor of the plaintiffs words? a contract to purchase in fee a tract of land, of which that now in the defendant's possession is part. She gave her bond for the purchase money and entered into possession under the agreement. But she did not pay the bond or get a deed; and the vendor obtained judgement on the bond and upon a fiere facias thereon the same land was sold & conveyed by the sheriff to a person under whom the defendant claims. The defendant entered into a field, which the lessor of the plaintiff had in cultivation & forcibly turned out her servants, who were ploughing the field, & then took possession himself.
            The court instructed the jury, that the lessor of the plaintiff had no such interest in the land as was the subject of execution & that nothing passed by the sheriff's sale, and therefore that the defendant was a mere intruder, against whom the law protected the possession of the lessor of the plaintiff & entitled the plaintiff to recover in this action. There was a credit & judgement for the plaintiff & the defendant appealed.
            The defendant was a mere transfer? & wrong & act? as supposed, it cannot be held in this State that ejectment can be maintained upon a naked possession, once had, when there is no presumption of a conveyance of the legal title, but it appears affirmatively to be in another person. (cites two cases).
            But the defendant is not a stranger. It has long been held, that as against the defendant in the execution the purchaser need show only the judgment, execution, sale & sheriff's & no. (cites cases). Such is the case, when the purchaser brings ejectment against the defendant in execution; and it proceeds upon the principle that whatever the debtor had passed under the execution, sale, & that, as it had been sold for his debts, he ought not for the purpose of defeating the purchaser, to say he had nothing in the premises. That principle is equally applicable to an action brought against the purchaser by the defendant in the execution. If the debtor had any estate the purchaser, of course, acquired it, and for that reason is entitled to hold. If the debtor had no estate in the land, then that person cannot maintain ejectment, for in that action the plaintiff must recover upon the strength of his own title; either as being in itself, good against all the world, or good by way of estoppel against the defendant. Here it is admitted that the lessor of the plaintiff had not the title; and it is equally clear, that there is nothing to raise an estoppel in her favor. In finis, the action not?? upon two inconsistent propositions: which are, that nothing passed to the purchaser because the lessor of the plaintiff had nothing in the premises; and yet? that she had an interest & estate at the sale &, notwithstanding the sale, still has, which entitles her to recover.
 

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