48 S.E. 769 | N.C. | 1904
This is an action for damages in a breach of covenant in a deed conveying land. The covenants sued (393) on are set out in section 3 of the complaint as follows: "That the said deed so made, executed and delivered as aforesaid, contained covenants in substance as follows: `And the said parties of the first part (i. e., the said C. A. Armstrong and wife, N.J. Armstrong, the defendants in this action, covenant that they are seized of the premises (i. e., the lands described in said deed and in this complaint) in fee, and have right to convey the same in fee simple; that the same are free and clear from all encumbrances.'" The plaintiff further alleges that *287 at the execution of the deed the defendants did not own the land, were not in possession thereof, and had no right to convey it. Wherefore he demanded damages in the sum of $2,300, the purchase price of the land. The defendants in apt time demanded a removal of the action to Montgomery County in which the land is situated. This motion was refused.
The naked question before us is whether this action comes within any of the provisions of section 190 of The Code, which is as follows: "Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in cases provided in The Code:
(1) For the recovery of real property or of an estate or interest therein, or for the determination in any form of such right of interest, and for injuries to real property.
(2) For the partition of real property.
(3) For the foreclosure of a mortgage of real property.
(4) For the recovery of personal property distrained for any cause."
It does not so appear to us, at least as the pleadings now stand. The plaintiff does not claim any interest in the land. On the contrary, he disclaims any interest therein — his alleged failure to acquire any such interest constituting his cause of action. If he wins his case the title to the land will (394) be in no way affected; while if he loses it we cannot see how the title of those not parties to the action could be affected thereby.
The defendants rely on Mfg. Co. v. Brower,
The plaintiff relies upon Phillips v. Holmes,
Baruch v. Long,
Affirmed.
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