69 S.E. 504 | N.C. | 1910
Among other allegations contained in the complaint, it is alleged that C. P. Cox, the intestate of the plaintiffs, purchased from C. V. S. Boyden, as administratrix or N. A. Boyden and individually as his heir at law, 337 acres of land in Surry County belonging to N. A. Boyden, for the sum of $4,300, of which $3,900 was paid to the First National Bank of Mount Airy, N.C. on a bond secured by a duly registered deed of trust on said land, and a note of $400 for the balance was executed to the administratrix of N. A. Boyden. The purchaser, Cox, finding that there were unsatisfied docketed judgments against N. A. Boyden, under one of which his homestead had been allotted, purchased several of said judgments, and brought this action in behalf of himself and all other creditors, to have the land allotted as his homestead sold and also to have the deed to him declared void, his note for $400 surrendered and canceled, and himself subrogated to the rights of *427
the bank, under the deed of trust, to whom he had paid $3,900 of the purchase price and for a reference to ascertain the validity and liens of the judgments. C. P. Cox, the purchaser, died pending the action and the plaintiffs, as his administrators, were made parties. The defendant answered some of the allegations and denying others, pleaded the statute of limitations to the judgments; denied that the homestead of N. A. Boyden had been properly allotted, it having been allotted in October, 1877, on an execution issued from the Superior Court (524) of Rowan County, but not docketed in Surry County, though the return was filed in the office of the clerk of the Superior Court of Surry County. The defendant denied the right to have the note of $400 canceled. The action was referred to on. H. A. Doughton, who heard the evidence offered on 4 and 5 August, 1909. At the hearing the defendant offered to show that C. P. Cox, after the date of the deed to him, entered upon the land, moved a sawmill upon it and cut down and removed timber of the value of more than $2,000. This evidence was rejected by the referee. The defendant excepted to this ruling, and upon his Honor's sustaining the ruling of the referee, again excepted and assigned these rulings as error. The referee sustained the allotment of the homestead of N. A. Boyden under the Susan Coghill execution issued from Rowan County in 1877, though the allotment was not recorded in the office of the register of deeds of Surry County and the judgment not docketed at that time in said county; ascertained the validity and priority of lien of the judgments against N. A. Boyden; that he was indebted otherwise than by judgment at the date of his death; declared the deed void as made within two years after administration upon his estate; that C. P. Cox was entitled to be subrogated to the rights of the Mount Airy Bank to the extent of $3,900 paid by him on that debt, and ordered a cancellation of the note of $400. The defendant filed exceptions to these several findings of the referee, and his Honor having approved the findings and conclusions of law, the defendants again excepted. His Honor directed the tracts of land to be sold separately by the commissioners appointed, but directed the proceeds to be held to await the further report of the referee on the validity of the two alleged debts therein reported by him. From the judgment, the defendant appealed.
The rulings of his Honor and the referee as to the validity of the allotment of the homestead of N. A. Boyden under *428
(525) execution issued on the Susan Coghill judgment from the Superior Court of Rowan County, though at the time that judgment was not docketed in Surry County, are, in our opinion, sustained by the former decisions of this Court. It was held in Bevan v. Ellis,
We think that both the referee and his Honor erred in not receiving the evidence offered as to the value of the timber cut and removed from the land by the purchaser, Cox, and the rents and profits received by him, if any. One of the main equities asserted by the plaintiffs — and the theory upon which the plaintiffs proceeded — was the rescission of the contract of sale, the cancellation of the deed and note given for the balance of the purchase money, and the subrogation of Cox, the purchaser, to the rights of the bank to the extent of $3,900, paid by him out of the purchase money in discharge pro tanto of its lien on this land; and the referee concluded that the plaintiffs were entitled to have the contract rescinded, and this finding was approved by his Honor. Conceding that the title conveyed by the defendant, as administratrix of N. A. Boyden and by her as his heir at law, was defective and subject to be avoided at the suit of creditors of N. A. Boyden, because made within two years from the grant of letters of administration upon his estate under section 70, Revisal, the purchaser, Cox, entered upon the land described in the deed and under the deed, and cut large quantities of timber therefrom to the value, as offered to be shown, of more than $2,000. It appears that this land was valuable for its timber. It would be inequitable to decree a cancellation of the obligation of Cox and rescind the contract as to the burden imposed by it upon him, and not require him to account for the benefits received by him. "He who seeks equity must do equity." The principal relief to be (527) effected by cancellation or rescission is to place the parties in the same condition as if there had been no change of their condition by the attempted contract — to put them in statu quo. This is universally recognized. Reed v. Exum,
Error.
(528)
