76 N.C. 311 | N.C. | 1877
As the indenture of lease is written, executed and registered, the only construction we can put upon it is, that it conveyed the whole term for the consideration of twenty-five dollars. That is admitted by the plaintiff, and hence he seeks to have the deed corrected so as to show that the consideration was the sum of twenty-five dollars annually to be paid as rent during the continuance of the term. We are satisfied that such was the meaning of the parties to the lease and that therefore as between the plaintiff and Lynch, the immediate lessee, the correction of the deed could be made and so as to all subsequent assignees with notice. But the ultimate purchaser of the term, to-wit, Thomas J. Smith against whom the relief is asked, is an assignee for full value and without notice. In purchasing and *313 for his own protection, he was bound to trace back his title through all the mesne conveyances, up to the original lease made by the plaintiff. None of these furnished any notice of the mistake in the deed or that the lease was subject to an annual rental. They all showed that the entire term of ninety-nine years was conveyed in consideration of the specific sum of twenty-five dollars in hand paid on the execution of the deed. The party seeking relief committed the mistake and is in default. The defendant is an innocent purchaser and is in no default. In such cases when one of the two parties must suffer, the loss must fall upon him who is in default. He must abide by his own laches. 2 Sugden on Vendors 360, 362.
A jury trial was waived below and the Court found as a fact, that Francis Lynch and W. C. Smith had actual notice of the mistake in the deed and had paid rent, but that Thomas J. Smith had no actual or other notice than what was contained in the several assignments.
The Court decided as a matter of law that the deeds of assignment operated as constructive notice to Thomas J. Smith. In that His Honor erred. The plaintiff is entitled to the relief he asked as to Francis Lynch and also to W. C. Smith, who is insolvent, if he desires it, but not as to Thomas J. Smith.
There is error. The judgment is reversed as to Thomas J. Smith and affirmed as to Francis Lynch and W. C. Smith. The case is remanded.
PER CURIAM. Judgment accordingly. *314
