78 N.C. 27 | N.C. | 1878
This case was decided in this Court at January Term, 1877 (
The estate under the lease had been assigned to the defendant W. C. Smith, with notice of the alleged mistake, and by him to Thomas J. Smith for value, but there was no evidence that he had notice of the mistake. It was held that the plaintiff had no equity to have the lease reformed as against him. *20
At the June Term, 1877, the plaintiff moved for a rehearing of the judgment of the previous term, and for an order remanding the action for a new trial in the court below, upon the ground that since the decision of this Court he had discovered testimony which would prove notice to Thomas J. Smith of the alleged mistake in the lease before his purchase.
It is conceded that this Court has the power in a proper case to grant the motion. It was so held in Bledsoe v. Nixon,
But it is clear that unless the granting of such motions be rigidly restrained by the established rules applicable to such cases it will tend greatly to protract litigation, which is against the interest of the public. This danger is pointed out and carefully guarded against in the opinion of the Court in Bledsoe v. Nixon.
The cases in which a new trial may be granted in the inferior courts for newly discovered testimony have been defined in a great multitude of concurring decisions in all the States, which may be found cited in 9 U.S. Dig. (N.S.), under the head, New Trial, ch. 2, subdiv. 6, sec. 2079 etseq.
We need only refer more particularly to Bledsoe v. Nixon; Holmes v.Godwin,
In the present case the plaintiff swears that since the decision in this Court he has discovered that the land was sold by the auctioneer subject to the payment of rent, and that McGregor, who bid it off for the defendant, did so with knowledge of that condition and of the plaintiff's claim (we suppose he means of the claim alleged in this action). In support of this statement, he reads an affidavit of Ballard that he was present at the sale, and that it was announced that the land was sold *21 "subject to the lease," and that McGregor "knew of the lease and (30) the claim of the plaintiff." It will be observed that Ballard does not say that McGregor knew of the plaintiff's claim to an annual rent. It was never denied that he knew of the lease, but it appeared from the lease that the term had been sold for a sum in present cash, and was not subject to an annual rent. The claim of the plaintiff which he is said to have known of is not described. It may have been a claim to the reversion, which is not denied. Thomas Bird corroborates the statement of Ballard, but does not extend it. The testimony of these affiants does not come up to the matter to be proved. Even if it did, the plaintiff does not allege that before the decision in this Court he used any diligence or indeed made any attempt whatever to obtain their testimony, or that of any other person, to prove notice to Thomas J. Smith of any mistake alleged to have been made in writing the lease, or that it was subject to any encumbrances not apparent on its face.
Shehan v. Malone,
PER CURIAM. Motion refused.
Cited: Carson v. Dellinger,
(31)