35 S.E.2d 180 | N.C. | 1945
This is an action to recover from the county of Jackson the sum of $369.34, paid by the plaintiffs as consideration for the conveyance to them of all the right, title and interest of the county of Jackson, in and to certain lands purported to be held by said county, under and by virtue of a tax foreclosure proceeding, in which the county became the last and highest bidder at said foreclosure sale and accepted a Commissioner's deed, which purported to convey the lands described therein to said county. After the plaintiffs herein took possession of said lands, the original owners instituted an action in ejectment against them, alleging that the tax foreclosure proceedings, and the conveyances executed pursuant thereto, under which the grantees purported to hold, were null and void, because the aforesaid owners were never served with summons in the tax foreclosure proceedings. That litigation ended adversely for these plaintiffs, hence this action. See Powell v. Turpin,
At the trial below it was stipulated that his Honor should hear the evidence, and find the facts without intervention of a jury. After hearing the evidence his Honor found that the plaintiffs were entitled to recover the consideration paid to the defendant, county of Jackson, because of (1) mutual mistake, and (2) total failure of consideration, and entered judgment accordingly. The defendant appeals, assigning error. The question presented for determination on this appeal is whether or not the grantees in a quitclaim deed may recover the consideration paid therefore, in the event a paramount title to said lands was outstanding in a third party or parties at the time of the execution of the conveyance and the grantees have been evicted by the holder or *391 holders of the paramount title. In the absence of fraud or mistake, our decisions answer this question in the negative.
The conveyance executed on behalf of the county of Jackson did not purport to convey the lands described therein, but merely whatever right, title and interest the grantor had in the lands. Such a deed is limited by the grant and is in its legal effect no more than a quitclaim deed even though it might have contained a covenant of warranty. Coble v. Barringer,
A quitclaim deed for land, in the absence of fraud or mistake, is a sufficient consideration to negative a plea of total failure of consideration, and this Court so held in Pritchard v. Steamboat Co.,
The plaintiffs in their complaint allege neither fraud nor mutual mistake, but bottom their action on a total failure of consideration. It is unfortunate for these plaintiffs that their purported title was defective. However, a careful examination of the title would have disclosed its defectiveness. Therefore, the county of Jackson is under no legal obligation to refund the consideration paid to it for its quitclaim deed.
The judgment below is
Reversed.