111 S.E. 513 | N.C. | 1922
This is an action begun by plaintiff on 5 July, 1921. The complaint was filed 24 August, 1921. Plaintiff alleges that in the year 1920 the defendant owned a large tract of land in the county of Stokes; that during said year he divided up said land for sale and made blueprints thereof; that on 29 May, 1920, the defendant, after due advertisement, held an auction sale of said property, and at that time had the blueprints aforesaid showing to prospective purchasers the boundaries, and representing to them the number of acres in the subdivision of the land; that plaintiff was at the sale, and relying upon the statements and representations and blueprints of the defendant, bid off tracts No. 1 and No. 3, as shown on the blueprints; that at the time of the sale some question arose of a disputed boundary at the northwest corner of lot No. 1; that the defendant stated to the plaintiff that there (319) were four or five acres in the dispute, and that they would allow ten acres off for that dispute; that the original tract No. 1 contained seventy-five acres; that the land in dispute was a small block in the northwest corner of lot No. 1; that the defendant represented that the line had been definitely settled, and that he could convey a clear title to the same, according to the blueprints, less the ten acres; that the plaintiff purchased tracts No. 1 and No. 3 as a whole, and would not have purchased one without the other, and would not have purchased either tract except upon the representation made by the defendant; that the defendant well knew that his statements aforesaid were false and fraudulent; and were made with the purpose of deceiving the plaintiff, and did deceive the plaintiff; that immediately after the sale the plaintiff not knowing that false representations had been made to him as to the title and number of acres contained in the land by the defendant, paid to the defendant $2,339.75, which was one-fourth of the total purchase price of both tracts of land, less the ten acres which were agreed to be taken off to cover the disputed land; that plaintiff relied upon the statements of the defendant as being true, and did not know that the representations made to him were false until about one year thereafter, when the defendant sent to the plaintiff a deed to said lands, which deed showed that it was short twenty-nine and six-tenths acres, whereupon plaintiff refused said deed, and refused to make further payments on said land; that the plaintiff was to pay one-fourth of the purchase price in cash, which he did, as hereinbefore set out, on 29 May, 1920, and was to pay the remainder in one, two, and three years from the date of sale; that plaintiff is entitled to have defendant refund to him the said sum so paid by him, together with interest, and is further entitled to have the contract declared null and void, and any and all notes or obligations which he may have executed to the defendant *342 surrendered and canceled. The prayer to plaintiff's complaint is as follows:
"Wherefore, plaintiff prays judgment against the defendant for the sum of $2,339.75, with interest on said sum at the rate of 6 per cent from 29 May, 1920, until paid, and to have said contract, and any and all notes which plaintiff may have signed surrendered and declared null, void, and canceled of record, and the cost of this action, and such other and further relief as the court may deem just and proper."
Defendant filed a petition for removal of the cause from Rockingham County to Stokes County, on 1 September, 1921, before the time for answering expired. At the same time defendant had notice served upon plaintiff attaching a copy of his petition notifying the plaintiff that the defendant would on 21 November, 1921, at 11 o'clock a.m. before (320) Long, J., at the courthouse at Wentworth, N.C. ask for an order removing the cause to the Superior Court of Stokes County, as requested in his petition. This notice was duly served on 6 September, 1921. The defendant filed his answer to plaintiff's complaint denying all of plaintiff's allegations, and asking for affirmative relief, to wit, specific performance, and also foreclosure of plaintiff's right, title, and interest in the land by reason of his contract of purchase to the end that from the proceeds of sale the indebtedness due by plaintiff to the defendant may be discharged, and the balance remaining paid to plaintiff. This answer was filed on 17 September, 1921. The plaintiff filed his reply on 23 November, 1921.
The cause came on to be heard at the November term of the Superior Court of Rockingham County, upon defendant's petition demanding the removal of the cause to the county of Stokes. Defendant's motion was denied, and to this ruling of the court the defendant excepted and appealed. It appears that the land which is the subject of this controversy is situated in the county of Stokes, and this action to cancel and set aside the notes and contract for the sale and purchase of the same was brought in the county of Rockingham. The motion is to change the venue, or place of trial, to the county of Stokes. The motion was denied upon the ground, we presume, that the action was not for the recovery of real property, or for the determination of any interest therein, or for injuries thereto (Pell's Revisal, sec. 419; C.S. 463). *343 Those sections provide that "Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by law:
"1. Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.
"2. Partition of real property.
"3. Foreclosure of mortgage of real property.
"4. Recovery of personal property."
We cannot see why this case is not governed by the principle stated in Council v. Bailey,
It is true that, as a general rule, a party seeking the aid of the court may select the forum (Hannon v. Power Co.,
Reversed.
Cited: Williams v. McRackan,