63 S.E. 186 | N.C. | 1908
Lead Opinion
DEFENDANTS T. T. AND J. B. ADAMS APPEALED. The action was instituted by plaintiff to enforce specific performance of a contract to convey land situated in Macon County against defendants T. W. McLoud, attorney in fact of Henry Stewart, Sr., Cassie Stewart, T. T. Adams and J. B. Adams (under the firm name of T. T. Adams Company), Henry Stewart, Jr., and Lula Stewart, T. B. Shepherd and R. A. Shepherd, plaintiff claiming the right to such relief under and by virtue of the following instruments:
"EXHIBIT A."
"This agreement, entered into this 4 April, 1908, by and between Henry Stewart, Sr., and Cassie Stewart, by T. W. McLoud, their attorney in fact, and Henry Stewart, Jr., of Highlands, N.C. of the first part, and T. B. Shepherd of the second part:
"Witnesseth, That the said parties of the first part hereby authorize the said party of the second part to negotiate for the sale of certain lands in Highlands Township, known as Stewart lands, except (66) therefrom the lands known as the Dobson lands, at the price of $5 per acre; said boundary being estimated approximately to contain 3,000 acres; that the said party of the second part is to have as his commission for the effecting of said sale the sum of ten per cent of the price for which said lands are sold, the same to be paid in equal proportions by the several parties of the first part; and the parties of the first part agree with the party of the second party that this authority shall take effect on 29 April, 1908, and continue for a period of thirty days; and they further agree to allow a reasonable time thereafter for examination of titles by the purchaser and survey of the lands, if required, and that they will execute good and sufficient conveyances in the law to such purchaser as the party of the second part shall produce *55 to the parties of the first part upon the tender by such purchaser of the purchase price per acre as herein stipulated for.
"Witness our hands, the day and year above written.
HENRY STEWART, SR., CASSIE STEWART, By T. M. McLOUD, Their Attorney in Fact. "Attest: W. T. Pots." HENRY STEWART, JR.
"EXHIBIT B."
"NORTH CAROLINA — Macon County.
"This agreement, made and entered into this 14 May, 1908, by T. B. Shepherd and wife, R. A. Shepherd, of Macon County and State of North Carolina, parties of the first part, and J. J. Combes, of Swain County and State of North Carolina, party of the second part:
"Witnesseth, That for and in consideration of the payment by the party of the second part, during the life of this agreement, of the sum of $6 per acre to the parties of the first part for all the lands described and defined in a contract made and entered into on 4 April, 1908, between T. B. Shepherd and Henry Stewart, Sr., and Cassie Stewart, by their attorney in fact, T. M. McLoud, and Henry Stewart, Jr., which contract was registered on 16 April, 1908, in book 3-A of deeds in the register's office of Macon County, N.C. at pages 272 and (67) 273, to which reference is hereby specially made for more definite description. Said parties of the first part, upon payment of the price as above set forth by the party of the second part, agree to make or cause to be made a deed of the kind and nature mentioned in said contract or agreement to the party of the second part. Said parties of the first part agree to allow said party of the second part a reasonable time to examine and investigate the titles to said lands above described, in the event that said party of the second part decides to purchase or take said lands before the expiration of this agreement.
"This agreement shall be null and void on and after 31 May, 1908.
T. B. SHEPHERD. [Seal.] R. A. SHEPHERD. [Seal.]"
"Filed 26 May, 1908. R. M. LEDFORD, C. S.C."
"Exhibit A" was registered in Macon County, 16 April, 1908, and "Exhibit B," the contract with plaintiff, was executed on 14 May, 1908, and registered in Macon County on same date. Plaintiff alleges his readiness and ability to presently comply with the contract on his part. Defendants T. T. and J. B. Adams hold a contract for the same lands, executed by Henry and Cassie Stewart, by T. M. McLoud, their attorney *56 in fact, and Henry and Lula Stewart, bearing date of 29 April, 1908, and registered in Macon County 25 May, 1908. As ancillary to plaintiff's principal demand for specific performance, plaintiff sued out a restraining order in the cause, alleging that defendants T. T. and J. B. Adams, claiming the right to do so under their contract, have wrongfully and unlawfully entered upon said land and are committing divers trespasses and depredations thereon, and are threatening to cut and destroy and remove the valued timber growing in and upon said land, to plaintiff's great and irreparable damage, and that said defendants will carry out this threat and wrongful purpose unless restrained, etc.
Defendants T. T. and J. B. Adams admit that they had entered (68) upon said land with the intent to acquire and own the same under their contract with the Stewarts, and allege that there is a fraudulent combination and conspiracy between Combes and Shepherd to prevent the Stewarts from complying with their contract; and aver, further, that the contract ("Exhibit B") under which plaintiff claims an interest and seeks to acquire ownership of the lands is without proper authority and is legally insufficient to impart any interest in the land.
The restraining order was continued to the hearing, and defendants T. T. and J. B. Adams excepted and appealed. The appeal bond was filed on 28 July, 1908. Appeal perfected 9 November and duly docketed in the court 11 November, 1908.
It is accepted doctrine that a binding contract to convey land, when there has been no fraud or mistake or undue influence or oppression, will be specifically enforced. Rudisill v. Whitener,
It will be noted that the defendants T. T. and J. B. Adams claim the land in controversy under the Stewarts by an instrument registered on *57
25 May, and the contract of plaintiff, signed by T. B. Shepherd ("Exhibit B"), having been registered prior to that under which defendants claim, to wit, on 14 May, if said Shepherd was an agent "thereto legally authorized," the plaintiff, on the face of the papers, would (69) have the better claim. In this aspect of the case the rights of the parties will depend chiefly on the proper construction of the instrument under and by virtue of which T. B. Shepherd acted ("Exhibit A"), this instrument having been likewise registered prior to defendants' contract. On behalf of defendants it is earnestly argued that this instrument ("Exhibit A") only conferred upon T. B. Shepherd the usual power of an ordinary real-estate broker, and that the authority of such an agent is restricted, as a rule, to bringing the parties together or finding a purchaser ready and able to pay the price, and the authorities cited in the learned brief of defendants' counsel are apt in support of this position, notably Kramerv. Blair,
While we make no question of the correctness of the general (70) proposition insisted on by defendants, we are of opinion that this instrument confers much larger powers than those ordinarily possessed by real-estate brokers, and authorized the agent, as stated, to make a binding contract to convey the property. The plaintiff, then, holding a contract for the property, signed by an agent thereto duly authorized, and first registered, on the face of the papers, has a primafacie right to the relief which he seeks, and the court correctly adjudged that the restraining order be continued to the hearing. True, there are *58
allegations and evidence, on the part of the defendants tending to impeach the plaintiff's claim by reason of conspiracy and fraud, but these are questions to be referred to the jury for decision. They are denied by plaintiff, and on the facts presented it is proper to apply to them the rule laid down in Tise v. Whitaker,
There is no error, and the judgment below is
Affirmed.
Addendum
DEFENDANT HENRY STEWART'S APPEAL. After the appeal of T. T. and J. B. Adams was perfected in this case, being from a judgment continuing a restraining order to the hearing, and after same was docketed in this Court, Henry Stewart, another one of defendants, moved before his Honor R. B. Peebles, J., riding the courts of the Sixteenth District, to set aside the restraining order on account of newly discovered evidence, etc. The judge denied the motion, holding that the cause as to the questions involved (71) in the restraining order was no longer before the Superior Court and that he had no power to comply with the defendant's motion. The defendant Stewart excepted and appealed.
There is no error. While the Court has held that an appeal from an interlocutory order leaves the action for all other purposes in the court below, the decision is also to the effect that the disposition of the interlocutory order and all questions incident to and necessarily involved in the ruling thereon are carried by the appeal to the appellate court, and the judge below therefore had no power to entertain or act upon appellant's motion. Green v. Griffin,
The judgment denying defendant's application is
Affirmed.
Cited: Bonner v. Rodman,