Alamance Lumber Co. v. Edwards

• Decision Date: 06 March 1940
• Docket Number: 738.
• Citation: 7 S.E.2d 497,217 N.C. 251
• Parties: ALAMANCE LUMBER CO. v. EDWARDS et ux.
• Court: North Carolina Supreme Court

7 S.E.2d 497

217 N.C. 251

ALAMANCE LUMBER CO. v. EDWARDS et ux.

No. 738.

Supreme Court of North Carolina

March 6, 1940

[Copyrighted Material Omitted]

Claude V. Jones, of Durham, and Allen & Madry, of Burlington for plaintiff, appellee-appellant.

S C. Brawley and S. C. Brawley, Jr., both of Durham, for defendants, appellees-appellants.

SEAWELL Justice.

Plaintiff's Appeal. We see nothing in the order striking out certain portions of the complaint which may be harmful to the plaintiff or embarrassing to it in the prosecution of its cause, and the order will not be disturbed. Patterson v. Railroad, 214 N.C. 38, 198 S.E. 364; Pemberton v. Greensboro, 203 N.C. 514, 515, 166 S.E. 396; Id., 205 N.C. 599, 172 S.E. 196.

Defendants' Appeal. It is apparent that the defendant Edwards intends to take whatever advantage he may of the windfall that has come to him by reason of the innocent mistake of the original adjoining land owner who, unwittingly, constructed his house partly upon a vacant lot now the property of defendant. Whatever advantage the defendant may have under the austerities of more formal law, plaintiff contends, with some reason, that this attitude is calculated to produce substantial injustice, and argues that it is remediable in equity. We fear that the method of approach to the equitable jurisdiction has not been fortunate.

That there were equities between the original owners of these adjoining lots,-- the one who built too generously and the one upon whose land the house encroached, --must be conceded. Pomeroy, Equity Jurisprudence, vol. 2, sec. 867; Hardy v. Burroughs, 1930, 251 Mich. 578, 232 N.W. 200, and cases cited; Phelps v. Kuntz et al., N.J. Ch.1910, 76 A. 237; Crump v. Sanders, Tex.Civ.App., 1915, 173 S.W. 559; 31 C.J. 318-319; Gordon v. Fahrenberg & Penn, 26 La.Ann. 366; Matson v. Calhoun, 44 Mo. 368; Uthoff v. Thompson, 1933, 176 La. 599, 146 So. 161; Olin et al. v. Reinecke et al., 1929, 336 Ill. 530, 168 N.E. 676. See, also, 31 C.J., p. 312, Section 9; Harrington v. Lowrie, 215 N.C. 706, 2 S.E.2d 872, and cases cited. Whether these equities have weathered both time and the vicissitudes of trade and alienation, is a question. Such a right is capable of equitable assignment (Bank of Northampton v. Town of Jackson, 214 N.C. 582, 586, 200 S.E. 444; Page Trust Co. v. Construction Co., 191 N.C. 664, 132 S.E. 804), but we are unable to agree that it runs with the land,--that is, that it follows a transfer of the legal title of the land upon which the owner supposed he was building and is assertable against all persons into whose hands may come the land on which the encroachment was made, --although there is authority in some jurisdictions suggesting that view.

The plaintiff derives its title to the Jackson lot through foreclosure of a trust deed which, in its form at the time, and, of course, its present form, is a mere legal conveyance of the title,--in trust, of course,--without expression of any intent between the parties to include in the contract any extraterritorial rights and, in law, must be confined in its effect to the metes and bounds of the description. If it could be now reformed to any advantage to the plaintiff, no equitable basis has been laid for it in the complaint. Buchanan v. Harrington, 141 N.C. 39, 53 S.E. 478, and cases cited.

The Jacksons have not been made parties to the suit, and no attempt has been made by the plaintiff to work out its equity through any authority from them, other than that supposed to be contained in the successive transfers of the legal title.

If we looked alone to the assertion of this equity, which is, of course, the paramount relief sought for, we would be compelled to sustain the demurrer in the present state of the pleading.

But the plaintiff alleges that defendants...