77 N.C. 186 | N.C. | 1877
While the plaintiff was absent in the army, his land was sold by the sheriff at execution sale, and his mother, the defendant Rachael Banks, became the purchaser. She conveyed to Ezekiel Banks, another son, who subsequently died, and the defendant Melissa Banks is guardian of his heirs at law, and defends this action for herself and as such guardian. The other facts necessary to an understanding of the points decided are stated by Mr.Justice Bynum in delivering the opinion of this Court. Upon issues submitted and under the instructions given, the jury rendered a verdict for the plaintiff. Judgment. Appeal by defendants.
The defendant Rachel Banks, at the execution sale of her son's land, he being then absent in the army, represented to the bidders that she was biding for her said son's benefit, whereby she (187) suppressed the biddings and purchased the land at an undervalue, and took the sheriff's deed to herself. This constituted her a trustee of the land for the son. Rich v. Marsh,
Upon the return of the son after the sale, to wit, in the early part of 1863, the mother offered to convey the land to him on the repayment of the purchase money. This he declined to do, alleging that the land was still his, because it was not properly sold. Whereupon the mother, in August of the same year, sold and conveyed the land to Ezekiel Banks, another son who purchased with notice of all the facts. Soon after this latter sale, and during the same year, the plaintiff tendered to his mother the money and interest paid by her for the land, and demanded a conveyance, which was declined. He is entitled to relief unless his first refusal to take the conveyance on the repayment of the purchase money operated as a renunciation and abandonment of his equity. But clearly it did not have that effect. So far from renouncing his claim, he insisted to his mother that the land was still his, and he claimed it because it had been, as he alleged, improperly sold. To constitute an abandonment or renunciation of claim there must be acts and conduct positive, unequivocal, and inconsistent with his claim of title. Nor will mere lapse of time or other delay in asserting his claim, unaccompanied by acts clearly inconsistent with his rights, amount to a waiver or abandonment. Faw v. Whittington,
PER CURIAM. No error.
Cited: Skinner v. Warren,