Rainey v. . Hines, 28 S.E. 410

28 S.E. 410 | N.C. | 1897

On 5 December, 1890, the plaintiff, being the owner in fee of a tract of land in Forsyth County, N.C. known as the Germanton tract, agreed in writing to exchange the same with L. L. Thomas for a piece of Thomas' land, consisting of two contiguous tracts in Henry County, Virginia. By the terms of agreement of exchange the plaintiff was to pay to Thomas $2,000 in addition, partly in cash and partly in future installments. Each party was to make good and (319) sufficient title to the other to the lands exchanged, and each to remove all encumbrances from his own property. The plaintiff went into possession of the land in Virginia in January, 1891, and Thomas went into possession of the Germanton tract during the same month and year. The plaintiff paid to Thomas the balance of the "boot money" in January, 1893, and at the same time received a deed from Thomas to one of the tracts which was encumbered in Virginia; Thomas informing him then that he could not make a deed to the other contiguous tract for the reason that one Donovant had a vendor's lien on it for about $1,000. The plaintiff has never made a deed to the Germanton tract to Thomas. The defendant Hines is the purchaser of the Germanton tract through mesne conveyances from Thomas. After the payment of the difference in exchange by the plaintiff, the plaintiff also paid the lien of Donovant, the vendor of Thomas, $787.89, and also the sum of $188.60, the amount of a judgment of the Circuit Court of Henry County, Virginia (which amounted to $198.13 at the time of the trial of this cause), in favor of the Roanoke and Southern Railway Company against the plaintiff and Rainey and others, which judgment was declared to be a lien upon one of the tracts of the Virginia land.

The present action was brought by the plaintiff to impress on the Germanton tract an equitable charge in favor of the plaintiff for the amount he paid to Donovant, and also for the amount which he was compelled to pay upon the judgment in favor of the railroad company against Thomas and himself.

In the argument here the matter was treated by the defendant's counsel as in the nature of a closed transaction between the plaintiff and Thomas, and as if deeds with covenants of warranty had been executed, each to the other, for the several tracts of land embraced in the exchange. To support his argument the defendant's counsel cited particularly Leachv. Johnson, 114 N.C. 87; Nance v. Elliott, 3 Trial (320) Eq., 408, and Clanton v. Burgess, 17 N.C. 13.

The facts in each of those cases are in nowise like those in the case before us. In the first cited case nothing was decided, except that a purchaser under a contract before the payment of the purchase money was not compelled to take a defective title from the purchaser, the defect having been discovered after the agreement of purchase was made. The judge who delivered the opinion in that case said that a different principle would apply in case of the discovery of encumbrances before the execution, and afterwards, for the reason that after the deed had passed, the vendee must rely on his covenant.

In Clanton v. Burgess, 17 N.C. 13, it is said, with approval: "The case cited at the bar, Abbott v. Allen, 2 Johns, ch. 519, lays it down that a purchaser who has received a conveyance and is in possession and not disturbed will not be relieved on the mere ground of defect of title, where there was no fraud nor eviction, but must rely on his covenants." There is no question but that the law is correctly laid down in both of these decisions. They mean nothing more than that after a deed for land has been executed and delivered, no fraud or mistake appearing, the vendee must rely on the covenants contained in the deed, in case of loss or eviction. But we have a great deal more here than the mere execution and delivery of a deed to land with covenants of warranty. The written agreement of exchange between the plaintiff and Thomas has not been fully executed. The plaintiff has performed his part, except that he has not made a deed to the original tract (Germanton tract) to Thomas, because of Thomas' refusal and failure to pay off the encumbrance on the Virginia land, thereby forcing the plaintiff to discharge it himself to protect his title and possession. Thomas or his grantee, if he (321) should undertake to compel the plaintiff to execute to him a deed for the Germanton tract, would be met with the plain, equitable demand that he should first reimburse the plaintiff for the money he had been compelled to pay to rid the Virginia lands of the encumbrances upon them, and which Thomas should have discharged under the agreement of exchange. That being so, the fact that the plaintiff Rainey has become the mover in this action to have the Germanton property impressed with a charge to the extent of the amount which he has been compelled to pay for Thomas to relieve the Virginia lands from lien, does not alter the equities underlying the transaction. The plaintiff still holds the legal title to the Germanton land, and is entitled, for the reasons stated, either to the possession of the same or to have it sold and a sufficiency of the proceeds of sale applied to the reimbursement of the plaintiff, the sum which he was compelled to pay to raise the encumbrances. Under all the circumstances connected with the transaction, it is more equitable that the last course be adopted.

There was an exception of the defendant to the introduction of the record of the judgment from the Circuit Court of Virginia, on the ground "that the record was not a full record." We are to presume that the objection is that the whole of the proceedings, from summons to judgment, inclusive, should have been embraced in the record. We think that such is not the law. If a judgment is relied upon to establish any particular state of facts upon which the judgment was based, or as a matter of estoppel, then a duly authenticated copy of the proceedings in which the judgment was rendered ought to be introduced. But in cases where it is only sought to prove contents and the existence of a judgment, it is only necessary to produce a duly authenticated copy of the judgment itself. Davidson v. Sharp, 28 N.C. 14; Edwards (322) v. Jones, 113 N.C. 453; Gibson v. Robinson, 90 Ga. 756; Anthanissen v. Dart, 94 Ga. 543. The judgment record introduced showed jurisdiction of parties and that it was a lien upon the lands.

There was no error in the ruling of his Honor in allowing the judgment, in manner and form as it was rendered, to be entered against Hines and his bondsman, Sparger, for the rents of the Germanton tract. There is no error in the proceedings below, and the judgment is

Affirmed.