Boyden v. Clarke
| Decision Date | 08 December 1891 |
| Parties | BOYDEN et ux. v. CLARKE. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Watauga county; JOHN G. BYNUM, Judge.
Action by John A. Boyden and wife against Clarke for trespass on land. Verdict and judgment for defendant. Plaintiffs appeal. Affirmed.
The other facts fully appear in the following statement by AVERY J.:
The plaintiffs offered in evidence a grant from the state to Richard Greene, dated November 26, 1802; then mesne conveyances from Richard Greene to Isaac Greene; from Isaac Greene to Elisha P. Miller; from the executor of Elisha P Miller to James Steele; from James Steele and wife to Lewis Harris; and from Lewis Harris and wife to feme plaintiff, the last-named deed bearing date 11th day of October, 1877. Three issues involving the title, the trespass, and damage, were framed, and the jury found, in response to the first, that the plaintiffs were not the owners, thus disposing of the case. The exceptions grow entirely out of the question whether the representation of a vendee of an adjacent tract to that bought by plaintiffs, and declared on in the action that the common corner of the two tracts was at a certain point, induced the plaintiffs to buy, and, if they were misled by it, whether the assignee of the vendee, who subsequently paid the vendor the purchase money, and took the title to himself, was estopped to deny the truth of the representations. The other material facts are stated in the opinion. Plaintiffs appealed.
Plaintiff purchased land from H. and went into possession. S., who held the adjoining tract on a contract of sale from H represented to plaintiff, before his purchase, that their division line commenced at a certain stump; but the true line would take a strip from plaintiff and add it to the land of S. Defendant had no notice of S.'s representations to plaintiff, and took an assignment of S.'s interest in the adjoining tract, paid the balance of the contract price to H., and took a conveyance direct to himself. Held, in an action of trespass, that defendant was not estopped by S.'s representations from claiming such strip.
Battle & Mordecai, for appellants.
W. C Newland, for appellee.
AVERY, J., (after stating the facts.)
The defendant, Clarke, bought the equitable interest of one Sherill, which the latter had acquired by a bond for title from James Harper, and the payment of a part of the purchase money. Clarke subsequently paid the residue of the purchase money to the original vendor, Harper, and took title to the tract of land, which the jury have found (under instructions as to locating the boundaries which are not excepted to) covered the territory on which the trespass is alleged to have been committed. Their finding, in view of the instructions under which they acted, must be considered by us as conclusive of the fact that the true location of the plaintiffs' beginning corner is at pine No. 1, on the plant, as contended by the defendant. The plaintiffs claim, however, that the defendant is estopped to deny that the common corner of his and the defendant's land, which is his own beginning corner, is at the point designated as pine No. 2 on the plant. This question is raised by a request to the court to charge the jury that if at the time when the plaintiff John A. Boyden bought the adjacent tract for his wife, the feme plaintiff, or before Sherill, the defendant's assignor, who was in possession as the vendee of Harper, told him that the common corner of the two tracts was at the point indicated on the plant as pine No. 2, and therefore Boyden, believing the representation to be true, bought the land from Harris, and paid the money for it, then the defendant, Clarke, would be estopped by the conduct of his assignor to deny the truth of the representations. The testimony of Boyden which bore upon this point was as follows:
The court was not bound to give the instruction embodied in this prayer, because, if we concede that there was such a privity in estate between Sherill and Clarke that the misleading representation of the former would operate in any case to estop the latter, it would be essential to first show that Boyden acted upon them, and placed himself in such a position that he must suffer loss unless they are treated as true and binding on Clarke. 2 Herm. Estop. § 945; Sedg. & W. Tr. Title Land, § 843; Bigelow, Estop. pp. 570, 638-641; 2 Pom. Eq. Jur. § 812. But the plaintiff insists that, as he bought immediately after Sherill pointed out the corner to him, there was evidence tending to show that he was misled by the statement, and that it was error to refuse to submit that question to the jury, and he is entitled to have the benefit of the point under another exception and his second assignment of error.
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