Stith v. . Lookabill

PEARSON, C. J. Upon the motion to non-suit, the only question was, “had Camman such an estate as was subject to sale under execution by his creditors?” On this depended the right of the plaintiff, who was the purchaser, to maintain an action againt the defendant, who for the purposes of the motion, stands as a wrong-doer, without connection, either as assignee or agent, with the cestui que trusts for whom Camman is assumed to have held the legal estate. . Mr. Gilmer in a well considered argument admitted the general positions taken by Mr. Bailey, in respect to “ uses and trusts,” to-wit: 1. This case did not come within the operation of Stat. 27th, Henry 8. So the legal title was in Camman, subject to the trust, set out in the deed “ for the sole and exclusive benefit of the members of a company called and known as the “ Conrad Hill Gold and Copper Company,” their successors and assigns forever. 2. Camman, in the Courts of law, was considered to be the owner of the land, and no notice was taken of the trust, to which he was subject. 3. Camman had power to assign the legal estate, and it could be sold under an execution against him, the purchaser taking subject to the trust, and notice being presumed. 4. Under the old system the plaintiff would have been entitled to judgment on a demurrer to the evidence. Mr. Gilmer then “ proved by the books,” that although the plaintiff was in a Court of law, (under the old system,) treated as the absolute owner of the estate, still being a trustee, on the *29 face of the deed by which he derives title, he and his assignee, whether by his own sake, or that of the sheriff, is subject to the control of the Courts of equity, by which these trusts estates were upheld and treated, as the real ownership. See the reasoning in Blackmer v. Phillips, 67 N. C., 340. The trustee or his assignee will be enjoined from enforcing his mere legal right in order to take possession of the land. Prom these premises he drew the conclusion that under our new system, the Court acting both as a Court of Equity and a Court of law, the assignee of the trustee by sale on execution will not be allowed to take judgment for the recovery of the possession of the land. The argument is well constructed, but it fails in this; under the old system the Court of Equity only interfered by injunction to prevent the trustee or his assignee from taking possession as against the eestui que trusts, or their assignee or agent, but did not interfere in favor of a wrong-doer, who fails to connect himself in any way with the cestui que trusts. Such is the law under the new system. In our case, for the purposes of the motion to non-suit, the cestui que trusts are not before the Court, and the defendant stands as a wrong-doer, with-holding the possession from the plaintiff, who is the owner of the legal estate. If Camman had brought the action, the defendant, so far, as for the purposes of the motion, as the matter now stands, would not have under the old system, entitled himself to an injunction ; neither can he do s'o under the new system, by which the equity of the case as well as the law is administered in the same forum, for the plain reason that he stands as a wrong-doer, with-holding the possession from one having the legal estate, and does not in any way connect himself with the supposed cestui que trusts. There is error. Judgment reversed and venire de novo. ! We cannot even by implication give sanction to the novel practice of allowing a motion to non-suit the plaintiff, in the midst of a trial, on the ground that his evidence does not make *30 out a case ; the counsel of defendent stating that if his Honor should over rule the motion he had evidence to offer, showing title in himself. By a demurrer to the evidence the defendant puts the case, which means the exitus issue, or end of the case, upon the sufficiency of the evidence. The judgment of the Court decides the action one way or the other. But by this novel practice the defendant has two chances to one, which is not “ fair play.” When it is decided that on the trial of a State case the defendant has no right to make a motion to dismiss the proceeding and for his discharge, upon the ground that the bill of indictment was fatally defective, and there could consequently be no judgment, even if the jury should find him guilty. We cannot tolerate this loose mode of trial. C. C. P. dispenses with the formal mode of commencing actions and of pleading, but it does uot'dispense with the rules for conducting trials which have been heretofore established, as essential to the fair administration of the law. After a jury is empanneled both sides should, in the words of Lord Mansfield, “play out their cards so, in our case, Lookabill is not at liberty to hold back his defense and “ fish for ” the opinion of the Court, upon the case made by the plaintiff by a motion to non-suit. The established rules of practice require that he shall put himself upon that “ issue ” as decisive of the action. New trial. This opinion will be certified. Per Curiam. Venire de novo.