May v. Getty.
53 S.E. 75
N.C.
1905
Check Treatment
Walker, J.,

after stating the case: "We agree with the learned counsel of the defendants that the vital questions in this ease are those raised by their seventh and eighth exceptions to the referee’s conclusions of law and the ruling of the court thereon. Indeed we think that a decision upon the matters thus presented will be sufficient to dispose of the appeal, as the other exceptions are subsidiary to those two, and, if there are any not thus strictly related to them, they are not essential elements in the case and the rulings upon them, even *316 if incorrect, and we do not think they were, cannot be assignéd as reversible error.

There are three questions which we will consider in the following order: 1. Did Maxwell agree with May to rescind, and thereupon abandon the contract of sale? 2. Were the proceedings in the suit of May v. Maxwell, through which the feme plaintiff, Sarah J. May, claims title to the land of Maxwell, not covered by the said contract, valid and sufficient to vest the title in her ? 3. Is there any defect in the title of the plaintiff to the Forrester land of which the defendants can avail themselves ?

It is now well settled that parties to a written contract may, by parol, rescind or by matter in pais abandon the same. Faw v. Whittington, 72 N. C., 321; Taylor v. Taylor, 112 N. C., 27; Holden v. Purefoy, 108 N. C., 163; Riley v. Jordan, 75 N. C., 180; Gorrell v. Alspaugh, 120 N. C., 362. In the case first cited, Bynum, J., for the court, says: “The contract is considered to have remained in force until it was rescinded by mutual consent, or until the plaintiffs did some acts inconsistent with the duty imposed upon them by.the contract which amounted to an abandonment.” Dula v. Cowles, 52 N. C., 290; Francis v. Love, 56 N. C., 321. What will amount to an abandonment of a contract is of course a question of law and the acts and conduct which are relied on to constitute the abandonment should be clearly proved, and they must be positive, unequivocal, and inconsistent with the existence of a contract, but when thus established they will bar the right to specific performance. Miller v. Pierce, 104 N. C., 390; Faw v. Whittington, supra; Holden v. Purefoy, supra. We are of the opinion that the facts found by the referee and the court are sufficient to show a rescission of the contract and an abandonment of all rights under it by Maxwell. They are quite as significant for the purpose of indicating the intent of the parties, and especially the purpose of Maxwell to relinquish all his rights, as any we find in the books which have been *317 held sufficient to defeat a claim for specific performance or the assertion of an equity in the property. Francis v. Love, 56 N. C., 321. There was evidence to sustain the findings of fact as to the rescission and abandonment, and this being so, the findings will not be reviewed by us. Battle v. Mayo, 102 N. C., 413.

The defendants’ next contention is that, as the plaintiffs in the case of May v. Maxwell issued a general execution on the judgment instead of first having the land, which had been attached, condemned in the judgment to be sold by the sheriff under a special execution to be issued for that purpose, they lost the lien acquired by the levy of the attachment and all rights thereunder and, as the judgment was a personal one, nothing passed by the sale under the execution issued upon it to the purchaser, Sarah J. May. Counsel, in support of this position, cited Amyett v. Backhouse, 7 N. C., 63, and Powell v. Baugham, 31 N. C., 153. Those cases decide that the suing out of a writ of fieri facias instead of a writ of venditioni exponas on a judgment taken in a suit wherein an attachment has been levied, waives the lien of the attachment, there having been no condemnation of the land. By taking out a general execution on the judgment, containing no clause of condemnation, the land previously levied on under the writ of attachment was thrown into the general mass of landed property -belonging to the defendant, just as if the plaintiff had taken out an execution against his property generally as is done in ordinary cases. The practice prevailed of issuing a venditioni exponas with a fieri facias clause, so that the property formerly levied upon under an attachment or fieri facias might be sold under the venditioni exponas and the special fieri facias might be used to reach any other property not subject to the lien of the levy. But the old procedure has given way to the new and now we have no such distinctions between the forms of process as then obtained. The law now looks more to the substance than to form, and ignores the ancient *318 technicalities which were frequently used, to defeat justice. The Code explicitly provides that the sheriff, upon receiving the execution, shall satisfy the judgment out of the property attached by him, and for that purpose he shall proceed to sell so much of the attached property, real or personal, as may be necessary. Code, section 370. This is an express direction to the sheriff to sell the property previously levied on by him under the attachment, and invests him with as much power and authority to act in the premises as if an execution, in the form of a venditioni exponas,. had been issued to him, specially commanding him to sell the particular property. This has been the uniform construction of our statute upon the subject, as will appear by reference to the adjudged cases. Electric Co. v. Engineering Co., 128 N. C., 199; Chemical Co. v. Sloan, 136 N. C., 122. In Gamble v. Rhyne, 80 N. C., 183, it is said: “The property seized is a legal deposit in the hands of the sheriff to abide the event of the suit, the lien of the attaching creditor having priority over any subsequent attachment or execution which may come to .his hands; and on the rendition of judgment against the defendant and when execution is issued and comes to the sheriff’s hands, then his powers as sheriff, under the attachment to hold merely, are merged into the larger powers acquired by him under the execution.” It is undoubtedly true that a plaintiff cannot take a general and personal judgment against a defendant, who is a non-resident, upon a service by publication and not even when an attachment has been levied on his property, the court having jurisdiction to adjudge against him only to the extent of the property seized. In the latter case it acquires jurisdiction by actual seizure of the res, under its process, and not otherwise. This is familiar learning, and our observations upon it need not be extended. Cooper v. Reynolds, 77 U. S. (10 Wall.), 308; Pennoyer v. Neff, 95 U. S., 714; Winfree v. Bagley, 102 N. C., 515; Long v. Ins. Co., 114 N. C., 465; Stone v. Myers, 9 Minn., 303; State v. Eddy, 10 Mont., 311. *319 In the case of Goodwin v. Claytor, 137 N. C., 224, we bad occasion to discuss both of these questions and it was there in part said: “It is contended that, if the debt was subject to garnishment at all, any lien acquired by the service of the writ of attachment was waived and the garnishee released by taking a general and personal judgment against the defendant and the garnishee, instead of taking an order condemning the debt to the payment of plaintiff’s claim. We do not think that, if the plaintiff acquired any lien on the debt due the defendant by the tobacco company, he lost it by taking a judgment against the defendant and the garnishee. The judgment against the defendant is void as a personal judgment, as the court could acquire no jurisdiction to proceed against him, except in so far as it could, by its process, levy upon or seize his property; and in this respect the suit is, to all intents and purposes, in the nature of a proceeding in rem, and not one in personam. But in this case the defendants can derive no benefit from the fact that the execution issued upon a general judgment. It was necessary to take such a judgment to ascertain the debt, and the execution issued to the sheriff was, by virtue of the special provision of the statute we have mentioned, in the nature of a venditioni exponas, to sell the property attached, and, for the purpose of subjecting the latter to the payment of the judgment, the court had plenary jurisdiction.” The plaintiff in the ease of May v. Maxwell could not sell under execution, ,the property described in the contract with Maxwell, who had paid one hundred dollars oh the purchase money, as his interest was not the subject of sale under such process (Hinsdale v. Thornton, 15 N. C., 381; Ledbetter v. Anderson, 62 N. C., 323; Love v. Smathers, 82 N. C., 369); but the sale passed title to the property belonging to Maxwell and not described in the contract, as there was no trust relation subsisting with respect to that. We cannot inquire into the validity of the cause of action in May v. Maxwell, the judgment being conclusive as to that in a collateral *320 proceeding. Cooper v. Reynolds, 77 U. S. (10 Wall.), 308. In tbe case cited, Mr. Justice Miller says tbat tbe court cannot disregard a judgment in another suit, or refuse to give it effect, on any other ground than a want of jurisdiction in tbe court which rendered it, and then proceeds: “It is of no avail, therefore, to show that there are errors in that record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. This principle has often been held by this court, and by all courts, and it takes rank as an axiom of the law.” ' That case is precisely in point, as the court was dealing with a question in all respects like the one we are now considering. If the cause of action in May v. Maxwell was defective, it could be taken advantage of only by a proper pleading in that cause and any ruling upon it could be reviewed by exception and appeal. The judgment, in any view, was merely erroneous and correctible by appeal and not in a collateral proceeding by direct attack.

Sarah J. May having already acquired title to the other property by reason of the rescission and abandonment of the contract, as we have shown, it therefore follows that as the proceedings in the attachment suit cannot be successfully assailed, the plaintiffs can give a good title to all the land embraced in their contract with the defendant Getty, unless there is some defect in the title to the Forrester land. It is not denied that Forrester had a good title to the three several tracts of land which, on the 16th day of November, 1896, he contracted to sell to S. J. May, or rather that he owned the right, title and interest therein which he claimed. This being so, we do not see why, under the judgment of the court in this action, the defendants will not be fully protected as to this part of the land. If they pay the amount found by the court to be due, as the balance of the purchase money under the contract of the plaintiffs with the defendant Getty, with interest and costs, so much of that payment will be applied to the *321 amount due by the plaintiff, S. J. May, on tbe Forrester contract as will discharge it and relieve the Forrester land of any further lien. And the same result will follow if the mineral interests and other rights and property adjudged to be sold to pay the sum of $4,889.76, due on the plaintiff’s contract ydth the defendant Getty, bring enough to pay that amount with interest and costs. If the property so adjudged to be sold does not bring enough, the rights of the parties can be easily and equitably adjusted by a sale of the Forrester land, upon the principle which the learned judge evidently had in mind when the judgment was rendered, and which is plainly set forth therein, namely, by a sale of the Forrester interest and the application of the proceeds, first, to the payment of the Forrester debt, and then to the payment of any balance due the plaintiffs; or, if the plaintiffs redeem the Forrester interest from the lien, adjudged to rest upon it, by subrogat-ing them to the rights of F. M. Morgan, administrator of For-rester, when they may have that interest sold to reimburse themselves, provided they have not already been paid in full the amount due by the defendant Getty. The latter under this arrangement cannot lose anything unless by his own default.

' In the discussion of the case we have treated the instrument executed by S. J. May to Ií. V. Maxwell, as a contract to convey, as it is such in substance and effect. And of the same nature are the instruments executed by S. J. May to E. P. Getty and by J. M. Forrester to S. J. May.

We have carefully reviewed the whole case and are unable to see why the defendant Getty will not be able to secure a good and indeed a perfect title, if he complies with the terms of the decree by paying the amount adjudged to be due by him. We do not deem it necessary to refer particularly to the' other exceptions, as' the most of them are practically covered by the decision we have already made, and those that *322 are not, either refer to matters not reviewable here or are in themselves without merit.

If there ever has been any defect in the title, it does not exist now; and if the plaintiffs can give a perfect title at the time of the trial, it is sufficient to induce a court of equity to compel performance of the contract. Hughes v. McNider, 90 N. C., 248.

There was no error in the rulings and judgment of the court below.

No Error.