Anderson v. Rainey
| Decision Date | 20 February 1888 |
| Citation | 5 S.E. 182,100 N.C. 321 |
| Parties | ANDERSON v. RAINEY. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Rockingham county; GILMER, Judge.
Appeal of John H. Anderson from a refusal of the lower court to grant an injunction restraining the sale of certain lands in the case of John H. Anderson, plaintiff, against Tabitha Rainey, defendant.
In a suit to restrain the sale of land purchased from defendant under a contract that defendant could sell in default of payments, plaintiff, after 13 years of possession, during which time a suit, in which the quantity conveyed was an issue and could have been determined, had been compromised and judgment of dismissal entered, cannot protect himself by alleging that he was induced to purchase the land on representation of defendant that the tract contained more than it actually did.
Graham & Ruffin, for plaintiff.
Mebane & Scott, for defendant.
This is an appeal by the plaintiff from the refusal of GILMER, J., to grant a motion made at chambers on the 30th of July, 1887, to continue an injunction restraining the sale of the land mentioned in the pleadings until the final hearing of the cause, and also upon exceptions (reserved) to the rulings of BOYKIN, J., previously made in the cause. The relief demanded by the plaintiff is of an equitable nature, and it is necessary to a clearer understanding of the questions involved to give a condensed statement of the material facts set out in the voluminous record sent to this court.
On the 2d day of July, 1873, John G. Rainey and Tabitha, his wife contracted with the plaintiff to convey to him in fee-simple with covenants of warranty, a tract of land in Rockingham county known as the "Hobson Tract," the boundaries of which, with courses and distances, are given, containing 893 acres, more or less, at the price of $8,930, for the payment of which two bonds were executed,--one for $1,000, to be paid on or before the 1st day of June, 1874, and the other for $7,930, to be paid on or before January 1, 1879, each bearing interest from January 1, 1874.
It was also agreed that the purchasers should have "the privilege to bargain and sell any portion of the land described, by the mutual consent of the parties as to the price, provided the purchase money be paid to the said Rainey and wife, to be entered as a credit" on the bonds of the purchaser, who was to have possession on the 1st day of January, 1874, but if he failed to pay the bond to become due on the 1st of June, 1874, on or before that day, he was to surrender possession to Rainey and wife, retaining the right to gather and hold the growing crop, and there was a like provision that if he failed to pay the $7,930 on or before January 1, 1879, he was to surrender the possession. On the 27th day of January, 1879, another agreement was executed by the parties "in lieu" of that of July 2, 1873, by which the plaintiff, Anderson, executed his bonds to Rainey and wife, for $9,775.50, to be paid as follows: One for $1,000, June 1, 1879; one for $1,000, June 1, 1880; one for $1,000 June 1, 1881; one for $1,000, June 1, 1882; and one for $5,775.50, to be paid June 1, 1883,--all bearing interest from January 27, 1879; and the said Rainey and wife were to convey the said land to the said Anderson, upon the payment of the said bonds and interest, excepting and reserving, however, a portion thereof within specified boundaries, the number of acres to be ascertained by survey, for which a credit at $10 per acre was to be entered as of January 27, 1879, on the bond to become due on the 1st of June, 1883. The number of acres so excepted was ascertained to be 227 1/2, making the credit $2,275. It was also stipulated that, if the said Anderson should fail to pay promptly the respective sums as they should become due, then, and in that event, Rainey and wife were to have a lien on and be entitled to take from the premises one-third of all the crops made on said land, to be credited at the market price on the bond falling due at the time the crop is so taken, and if the one-third of the crop should exceed the amount of the bond so due, the excess was to be credited on the bond next to fall due. There were other stipulations, not material to be stated.
At the fall term, 1882, of Rockingham superior court, Rainey and wife brought an action against the said Anderson, alleging in their complaint that he had failed to make payment in accordance with the terms of the agreement referred to, and that, being in default, they had made application to him for one-third of the crop, as stipulated, to be applied to the payment of the bond past due, and that he refused to allow them to take possession of the same, alleging as a reason for the refusal that one of the lines called for in the agreement did not run where he supposed it did, which the plaintiffs in that action alleged was a mere pretense, as the boundaries were distinctly set forth in the agreement, and the defendant had continually imposed upon them by making promises to fulfill his obligations. They also alleged that he had no property in excess of his exemptions, other than his interest in the lands; and they demanded judgment for possession, and the appointment of a receiver of the rents and profits. The defendant in that action (the plaintiff in this) answered, averring, among other things, "that while it is true, perhaps, that the boundaries of the tract, as set out in the agreement, are correct, yet the plaintiffs, in negotiating with him for the sale, undertook to point out to him the different lines, and, in that portion adjoining the Brodnax lands, they were careful to designate exactly where the line was," calling attention to the fertility of the land, and making representations in relation thereto by which he was "induced to enter into said contract of purchase; and matters thus stood till about August, 1881," when a portion of said land embracing 25 or 30 acres, of great and special value, for reasons stated, was claimed by the devisees of E. T. Brodnax, and the possession surrendered to them by the direction of the plaintiffs. He further averred that besides the payments of large sums specified, he had put permanent improvements upon the land, (enumerating them,) exceeding $1,100 in value, and asked by way of relief that the agreement be rescinded, and that he recover of the plaintiffs (Rainey and wife) the several amounts paid by him, and the enhanced value of the land, etc., or that he have an abatement of the purchase money by reason of the inability of the vendors to make title to the 25 or 30 acres referred to. A replication was filed denying the statements in the answer relative to the line and land adjoining the Brodnax land, averring title to the land claimed by the devisees of E. T. Brodnax, and that the surrender thereof was not by their direction, and that the alleged improvements, with slight exceptions named, were made prior to the contract of January, 1879, as also were the payments made on the first contract. An order was made by SHIPP, Judge, on the 5th of September, 1882, appointing a receiver, and subsequently, upon motion of the defendant, (present plaintiff,) an order was made by GILMER, Judge, for a survey of the land mentioned in the contract, and of the Brodnax land adjoining it. On the 29th of April, 1884, the action was compromised, the plaintiff agreeing to allow "a deduction on the purchase money of the land sued for of one of the bonds of one thousand dollars, and its interest," and other credits agreed on, and there was a judgment dismissing the action at the costs of the defendant Anderson. To carry into effect the compromise, the following agreement was entered into on the 14th of May, 1884:
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