75 N.C. 551 | N.C. | 1876
The parties not only on the day of sale, but in the proceedings to bring the case up for judicial determination, allowed themselves to become and continue to be so much excited as to (556) lose sight of the merits of the case and pass off into immaterial details.
His Honor refused to allow the many detailed and immaterial issues tendered by the defendants relevant to the evidence and not to the merits of the case to be submitted to the jury. In this there is no error. The issues tendered were calculated to confuse.
His Honor thereupon, as we suppose, being satisfied by the evidence and argument of counsel that "the merits of the case" were with the plaintiff directed the jury to find a verdict, "all of the issues in favor of the plaintiff."
After his Honor had rejected the many issues presented by the defendants he ought to have explained to the jury what is the issue between the parties. He would then have "struck the nail on the head" by telling them "Faircloth says he is entitled to a deed with general warranty. The defendants say the terms of sale do not stipulate for any warranty. Faircloth then brings this action in order to get a judgment that the defendants execute to him a proper deed on his paying his bid, so as to make specific performance of the contract of sale according to its legal effect. To this the defendants say, Faircloth having refused to accept the deed which was tendered to him, is to be taken in law to have abandoned the contract and Isler had a right to sell the land and was discharged from the obligation of the first contract. I instruct you that, taking the evidence in the most favorable point of view for the defendants, there is nothing to show that the plaintiff had abandoned the right acquired by his having bought the land at the first sale, and that the second sale was of no legal effect as a matter of law."
This, in substance, is the charge of the judge, and presents, (557) so far as can be seen by the very defective "statement of the case" and the argument at our bar, the merits of the controversy. *391
Suppose vendor and vendee differ as to which should trust the other in concurrent acts — "pay the money and here's your deed," or "here is the deed, provided you hand me the money," and the Court is satisfied there is no other ground of contestation. Upon a case, after it had been regularly constituted, the decree would be for a specific performance, and the question, Who is to blame for giving rise to the litigation? would merely affect the cost.
In our case there was a further difficulty. The plaintiff insisted upon a deed with general warranty. Mrs. Isler was only willing to execute a deed without any warranty. Both parties were mistaken as to the legal effect of the contract of sale.
When one makes a contract of sale for his own benefit there is an implication, from the nature of the transaction, that he will make a deed with general warranty. When a trustee makes a contract of sale, inasmuch as he is not acting for his own benefit, there is no implication that he will bind himself by a general warranty, but the implication that the nature of the transaction is that he is to give a special warranty that "he has done no act since the title vested in him to impair or affect it."
When a mortgagee with power of sale makes a contract of sale without any stipulation as to a warranty of title, or that there is no prior incumbrance, he is not professing, when he advertises the property for sale, to be doing an act for his own exclusive benefit, but he says, "I hold the title to this land with a power of sale to secure a debt. I now offer to sell for the purpose of getting my money." So the idea that the title of the mortgagor was to be warranted to be free of incumbrance could not have been entertained by the plaintiff when he bid at the auction. If he had a such a notion, as soon as he saw from the advertisement that Mrs. Isler had not offered the land for sale "free of incumbrance," he would have become satisfied that he was under (558) a mistake.
The case is narrowed to this: "Does the proposal of sale, to wit, the advertisement, exempt the vendor from a covenant that she had done no act to affect or impair the title as it was at the time it passed to her?"
Classing the case of a sale by a mortgagee under a power of sale, with a sale by a trustee, Mrs. Isler was bound to execute a deed with covenants that she had done no act to affect or impair the title as it was at the time of the execution of the mortgage.
The judgment is affirmed with this modification: S.W. Isler will execute a deed to B. M. Isler reconveying the legal title, and B. M. Isler will then execute a deed to plaintiff in fee, to be approved by the clerk, with a covenant that she has done no act to impair or affect the title as *392 it was at the date of the mortgage, and with the further modification: "each party to pay his own cost."
PER CURIAM. Modified and affirmed.
Cited: West v. West,
(559)
