Opinion
(August Term, 1851.)
1. An order taking a bill pro confesso for want of an answer dispenses with proof on the hearing, and is conclusive that the matter of the bill is true, as if the same were confessed in an answer.
2. If a bill, though confessed, does not entitle the plaintiff to a decree it must be dismissed; but if it contain matter for some decree for the plaintiff, that decree will be made.
3. Its nature, however, will depend upon the consideration whether there be or be not enough in the bill to show the precise extent of the relief which the plaintiff ought to have. If, for example, the bill be for the specific performance of a contract for the sale of land, and it is not so described in the contract or bill as to identify it by such metes and bounds as ought to be inserted in the conveyance to be decreed, then on the hearing the court would only declare that it was fit the contract should be specially performed, and a survey and inquiry would be directed thereon, and, of course, the party might offer proof touching that matter.
THIS was an ex officio information, filed by the Attorney-General in the Supreme Court at Morganton. The object of the information was to vacate a grant from the State to the defendant Carver.
The information states that on 29 June, 1851, the defendant (232) Carver made an entry of 200 acres of land lying in Burke County, on the waters of Toe River, under Humpback Mountain, and adjoining his own land on the east. That soon afterwards he obtained a warrant thereon and delivered it to David Chandler, a deputy of the county surveyor, and procured him to make plots and certificates of survey of the entry and transmit them to the office of the Secretary of State, purporting to be a survey of a tract of land containing 200 acres, with the following butts and bounds: "Beginning at a white oak standing on the east bank of Toe River, and running thence east 200 poles to a stake on the top of Humpback Mountain; thence north with the mountain 260 poles to a stake on the bluff end of the mountain; thence west down the leading ridge between Brushy Creek and Laurel Creek 200 poles to a stake on the bank of the river; and thence down the meanders of the river to the beginning." And that on 12 December, 1832, he (Carver) paid into the public treasury the sum of $10 as the purchase money of the said tract of land, and obtained a grant of that date to himself for the same, described therein by those lines and boundaries and as containing the said quantity of 200 acres. The information further states that in fact and truth the line east from the beginning white oak to the top of the Humpback Mountain exceeds two miles in length; and the next line, north with the mountain to the bluff end of the mountain, is also upwards of two miles long; and the third line, west from the bluff end of the mountain to the river, and that down the river to the beginning, each is more than two miles long, so as, by reason of the calls for natural objects as corners, to include within the lines 3,000 acres instead of 200 only. That Chandler and Carver well knew the length of the lines, and that the latter, by collusion with Chandler, procured him corruptly and contrary to his duty as a deputy surveyor to make an untrue (233) plat and certificate by giving the false description of the land as above mentioned and stating falsely the quantity therein contained, with the corrupt and fraudulent intent that by such false suggestion Carver should obtain a grant for the 3,000 acres of land included in the survey without making due payment therefor, excepting only as to 200 acres part thereof. And that in pursuance of such corrupt and fraudulent intention, and by such false suggestion, Carver did obtain the grant covering the large quantity of 3,000 acres instead of the 200 acres, to which latter quantity alone he was justly entitled. The information further states that the defendant Hyatt, with full knowledge of all the facts before charged, subsequently took a conveyance from Carver for the land as and for 3,000 acres.
Copies of the warrant, plat and certificate and grant are annexed as exhibits, and they are of the tenor stated in the information as to the corners, lines, and quantity of land, the grant being dated 12 December, 1832, and numbered 5601.
Prior to August Term, 1850, a subpoena returnable to that term was duly served on the defendants, and also a copy of the information delivered to each of them, but neither of them appeared, and on the return of the sheriff and motion of the Attorney-General, the court then ordered that the information should be taken pro confesso and set down to be heard ex parte at the present term.
Attorney-General and T. R. Caldwell for the State.
No counsel for defendant.
Of cases of this kind, when instituted on behalf of the State by the Attorney-General, original jurisdiction is conferred by the statute on this Court, and the proceedings may be by bill or by information in the nature of a bill in equity, and are to be carried on according to the course of the court of equity. The grounds on which grants may be vacated or repealed are that they were issued (234) against law or were obtained by fraud, surprise, or false suggestion. No one can hesitate to say that the case in the information, if true, furnishes grounds for annulling the grant. The entry was for 200 acres, and the enterer procured a survey to be made purporting to contain that quantity, and describing the lines to be of lengths that would include no more. There was nothing, then, upon the face of the papers transmitted to the Secretary of State which would raise a suspicion of any unfairness or falsehood in the description therein given of the land, to which description the grant was necessarily to conform. But by artfully and deceitfully calling for the natural objects of a river, the top and end of a mountain, and a dividing ridge between two creeks as parts of the boundaries of the land, the distances called for are, by legal construction, overruled, and the lines are to terminate at, or go along, the natural objects; and thus a grant was obtained, and intended to be obtained, for 3,000 acres, professing all the while to be for 200 only. And all this false description as to the length of the lines, and false suggestions and affirmations as to the quantity of land, were to the intent and purpose of cheating the public revenue out of the price of the difference in the quantities — that is, 2,800 acres. The fraud on the State is palpable, whereby the party knowingly got a grant for a large tract of land by paying one-fifteenth only of the price required by law. It is clear that a grant thus obtained ought not to be of force, but be decreed to be brought in, canceled and annulled, and the enrollment thereof canceled.
A doubt, however, has been suggested whether the truth of the case set out in the information is established. The doubt is founded on a practice, which is said to have prevailed of late in some parts of the State, requiring a plaintiff to prove his case on the hearing, notwithstanding the bill may have been taken pro confesso and the cause set down thereon. The practice cannot be of long standing, and (235) must be of limited extent, and there seems to be no foundation for it. The experience of the elder members of the Court is entirely to the contrary on the circuits, and it certainly never prevailed in this Court. Not to mention other cases, it was held, or plainly assumed, in Andrews v. Lee, 21 N.C. 318, and McCaskill v. McBride, 37 N.C. 52, that an order taking a bill pro confesso dispensed with proof on the hearing, or, rather, put the case into a condition in which there was no opportunity to get proof extrinsic of the bill. Prior to any alteration by statute, the appearance of a defendant, though served with a subpoena, was indispensable to any relief to the plaintiff, because without it the court had not jurisdiction to decree in personam. Various rules of court and acts of Parliament were made to enforce appearance or to authorize an entry of it by an officer of the court, even against the defendant's will; but it appears from Hawkins v. Crook, 2 Pr. Wms., 556, that when an appearance was thus entered, if the defendant still withstood process of contempt and refused to answer, the plaintiff was anciently put to prove the substance of his bill on the hearing. It further appears there that prior to that case the practice was established of setting down a cause when the defendant would not answer after appearance, and, upon the hearing, taking the bill pro confesso and decreeing thereon. The consequence of taking the bill pro confesso is there stated to be that every allegation in the bill is considered as confessed by the defendant. On that ground the reporter, who was the defendant's counsel, calls it an extraordinary consequence, "as it takes everything pro confesso which the fruitful fancy of counsel could invent, suggest, and put into a bill, and makes all pass for truth." Yet he admits that the practice was firmly established, and that it was founded on the sound reason, that without the order, the plaintiff would be without remedy, since (236) by the defendant's contumacy in refusing to answer, the plaintiff could not join issue, and was thereby deprived of the opportunity of examining witnesses. The necessity for the rule is thus rendered clear, and the effect of it must obviously be that stated — which is taking the matter of the bill to be true as if the same were confessed in an answer. The terms, "taking the bill pro confesso" per se, carry that sense; and when it is perceived that in the state in which the cause is hereby placed the plaintiff cannot proceed to proofs by witnesses, the conclusion is clear that the truth of the bill is to be taken as admitted on the hearing, as if an answer confessed it in the terms of the bill. It was in that sense those words were used in Stat. 5 Geo. II, which first allowed a bill to be taken pro confesso against and absconding defendant on whom process could not be served. The statement of the bill was assumed to be true, and a decree made accordingly. Smith's Ch. Pr., 153. The same terms are to be found in our acts of 1782 and 1787 regulating the proceedings against defendants who do not answer, whether served with process, or absconding or residing abroad, and there cannot be a doubt that they were used and are to be received in the same sense. The latter act contemplates that the hearing may be immediately after the order taking the bill pro confesso, and provides that the Court shall "decree thereupon" — that is, upon the bill and order — on the security of the bond of the plaintiff for restitution, if decreed on a rehearing; and the act of 1782 requires that upon taking the bill pro confesso, the cause shall be set down to be heard ex parte at the ensuing term, with a proviso that upon a proper ground shown within the first three days of the next term, the preceding orders may be discharged and the defendant admitted to a full defense. The acts of 1762, ch. 79, and 1806, ch. 703, contain similar enactments respecting petitions in the courts of law for legacies and distributive shares. And all those provisions distinctly evince that the cause is not open for proofs, (237) so far, at least, as concerns the decree to be pronounced on the hearing, and the case is thus brought by the statute within the very reason assigned in Hawkins v. Crook for the rule originally. Therefore, the decree is to be on the bill upon the supposition that the matter thereof is true by the confession of the defendant. It seems probable that the recent local practice to the contrary which has been mentioned to us has arisen from the misapplication to this case of the rule, that the matter in the bill which, though not expressly denied, is not admitted in the answer must be proved. But the distinction between the cases is plain, for without insisting on the general traverse usually inserted in the conclusion of the answer, there is this marked difference: that as to those parts of the bill on which the answer is silent, the bill is not taken pro confesso. A bill must be taken pro confesso throughout or not at all. Hence an answer, however insufficient, puts the plaintiff to the necessity of proving his case either by witnesses or by obtaining a fuller answer on exceptions. But that has no application to the case in which, in default of any answer or appearance, the bill is expressly taken pro confesso, whereby the plaintiff is allowed to insist on a decree on the bill as being all true. The consequences are that if the bill, though confessed, do not entitle the plaintiff to a decree it must be dismissed, but if it contain matter for some decree for the plaintiff it will be made. Its nature, however, will depend upon the consideration whether there be or be not enough in the bill to show the precise extent of the relief which the plaintiff ought to have. If, for example, the bill be for specific performance of a contract for the sale of land, and it is not so described in the contract or bill as to identify it by such metes and bounds as ought to be inserted in the conveyance to be decreed, then upon the hearing there would be only a declaration of the opinion of the court (238) that it was fit the contract should be specially performed, and, because the particular lines of the land did not appear, a survey and inquiry would be directed thereon, and, of course, the party might offer proof touching that matter. So it would be likewise in bills for redemption, to settle partnerships, and for accounts and payment of legacies, distributive shares, and the like. But if the bill contains matter which at all events entitles the plaintiff to a decree to the full extent of the prayer, and it is apparent that, taking the bill to be true, the result of no inquiry could vary the terms of the decree, then it is obvious that the decree on the hearing must be the final decree. Such is the present case. The information has but one purpose — that of vacating the grant. It asks for no account or other relief, and upon it there can be but one of two decrees under any circumstances — that is, to dismiss it or to vacate the grant. Therefore, it is incumbent on the Court now to declare that the grant was unduly obtained, as before mentioned, and to decree definitely that it be vacated and annulled according to the statute, and that the defendant Carver pay the costs.
PER CURIAM. Decree accordingly.
The following decree, drawn by the Court, was then entered:
21 August, 1851. This cause coming on to be heard on the information filed on behalf of the State by the Attorney-General, the exhibits and the former orders, and argument of counsel on behalf of the State, and the whole matter being considered by the Court, and it appearing in and by the information and exhibits as therein stated that on 29 June, 1831, the defendant Adrien Carver made an entry of 200 acres, of land, lying in Burke County, on the waters of the Toe River, under Humpback Mountain, and adjoining his own land, and that the said Carver afterwards obtained a warrant thereon, and procured one David (239) Chandler, a deputy of the surveyor of said county, to make out plats and certificates of survey, purporting to be upon the said entry and to be a survey of a tract of land containing 200 acres, with the following butts and bounds, that is to say: Beginning on a white oak standing on the east bank of Toe River and runs east 200 poles to a stake on the top of Humpback Mountain; thence north with the mountain 260 poles to a stake on the bluff end of the mountain; thence west down the leading ridge between Brushy Creek and Laurel Creek 200 poles to a stake on the bank of the river; thence down the meanders of the river to the beginning, and transmit the said warrant, plats, and survey to the office of the Secretary of State; and that on 12 December, 1832, the said Adrien Carver paid into the public treasury the sum of $10 as and for the purchase money due to the State for the said tract of land, and then obtained a grant to be issued to him, the said Carver, for the said tract of land described therein by the aforesaid lines and corners, and as containing 200 acres, and that the said grant bears date the day and year aforesaid, and is numbered 5601. And it further appearing thereby that the distances between the several natural objects, which are described in the said survey and grant as corners of the said tract of land, are such that each of the four lines thereof exceeds two miles in length instead of the respective lengths in the said survey and grant mentioned, and that by reason thereof the said tract of land so granted to the said Carver contains 3,000 acres instead of 200 acres as mentioned in the said grant. And it further appearing thereby that the said Carver and the said Chandler well knew the true lengths of the said lines, and that the said Carver, by collusion and fraud, procured the said Chandler corruptly and contrary to his duty as a deputy surveyor to make an untrue plat and certificate by giving in the said plats and certificates, as made and transmitted by him as aforesaid, a false description of the land as aforesaid as to the lengths of the said (240) lines and falsely stating the quantity therein contained, to the corrupt and fraudulent intent that by such fraudulent description, suggestions and affirmations, the said Carver should obtain a grant from the State for a much larger quantity, namely, 3,000 acres of land included in the said survey without making due payment therefor or any payment whatever in respect of 2,800 acres part thereof. And it further appearing thereby that in pursuance of said corrupt and fraudulent intent, and by means of said false suggestions, the said Carver did obtain the said grant to be issued to him as aforesaid covering the 3,000 acres of land instead of the smaller quantity of 200 acres, to which alone he was justly entitled. And it further appearing thereby that for the said causes the Attorney-General, on behalf of the State, prays that the said grant so obtained by the said Adrien Carver may be decreed by this Court to be vacated and repealed. And it appearing to the Court that at the last term thereof, the information was taken pro confesso against both of the defendants, wherefore, and because all the matters appearing as aforesaid in and by the information are thus taken to be true as if the same were particularly confessed by the defendants, it is declared by the Court that the said Adrien Carver did procure the said grant to be issued and made to him, the said Carver, by false suggestions, surprise and fraud as aforesaid, and that, in the opinion of the Court, the said grant ought for that cause to be repealed and vacated as prayed in the information; and the Court doth thereupon order, adjudge, and decree that the said grant to the said Adrien Carver, numbered 5601 and bearing the date 12 December, 1832, for the said tract of land hereinbefore described be and the same is hereby vacated, repealed, rescinded and annulled, and that the defendants, after service of a copy of this (241) decree twenty days before the next term, do bring the said grant into this Court at the next term to be canceled, and that the defendant Adien [Adrien] Carver do pay the costs of this suit to be taxed by the clerk. And the Court, in obedience to the statute in such cases made and provided, doth further order that, upon a copy of the information, orders and decrees thereon made, being filed by the Attorney-General, on behalf of the State, in the office of the Secretary of State, the said Secretary of State shall record the same in the book by him kept for that purpose, and shall also note in the margin of the original record of said grant the rendering of this decree, with a reference to the said record thereof in his office, and shall also cancel the enrollment of the said grant in his office by writing across the same the words, "Canceled by the decree of the Supreme Court."
Cited: Sinclair v. Williams, 43 N.C. 236; Attorney-General v. Osborne, 59 N.C. 301.
(242)