Branch v. Saunders

• Decision Date: 22 February 1928
• Docket Number: 1.
• Citation: 141 S.E. 583,195 N.C. 176
• Parties: BRANCH et al. v. SAUNDERS et al.
• Court: North Carolina Supreme Court

141 S.E. 583

195 N.C. 176

BRANCH et al. v. SAUNDERS et al.

No. 1.

Supreme Court of North Carolina

February 22, 1928

Appeal from Superior Court, Beaufort County; Clayton Moore, Special Judge.

Controversy without action by Eliza B. Branch and others against J. M Saunders and M. S. Cox, copartners trading as Saunders & Cox. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a controversy without action submitted upon an agreed statement of facts.

Little Swift Creek drainage district was duly formed according to law. At the time of the formation of said district the plaintiffs were the owners of the land in controversy, and are now the owners thereof. The plaintiffs' lands contained 1,495 acres; 920 acres of said land are situate within the boundaries of said drainage district, and 575 acres of said land are not so situate, but the entire tract of 1,495 acres constitutes one body of land. The district has duly issued and sold drainage bonds, and the defendants have agree to purchase "all the timber and trees of all kinds and size whatsoever, now standing, growing, or lying on the land *** for the sum of $8,000; that, under said contract the defendants may enter upon said land, and cut and remove said timber at any time prior to March 1, 1929, but said contract contains a provision that the defendants may extend the time for cutting and removing said timber and trees for twelve months from March 1, 1929, by paying to the plaintiffs, on or before that date, the sum of $950; that it is provided in said contract that the timber and trees growing on said land are to be conveyed free and clear of any and all liens and incumbrances, and especially free and clear of any lien in favor of Little Swift Creek drainage district for taxes or drainage assessments hereafter to become due and payable."

It further appears from the agreed case that drainage assessments upon the land in said district are payable in twenty-four annual installments, and that all installments have been paid by the plaintiff up to and including September 1, 1926; that plaintiffs have offered to pay the assessment due September 1, 1927, but have declined to pay the assessments due September 1, 1928, and all other assessments maturing subsequent to said date.

The defendants declined to accept the deed for said timber and pay the purchase money upon the ground that the unmatured installments constitute a lien upon the timber. Plaintiffs contend to the contrary.

The statement of facts discloses the following agreement between the parties:

"If the assessments coming due September 1, 1928, and annually thereafter until September 1, 1946, are a lien on the timber and trees situate both within and without or on timber within the drainage district, then the deed tendered by plaintiffs is insufficient to comply with the terms and provisions of the contract between plaintiffs and defendants. But, if the assessments in favor of Little Swift Creek drainage district, becoming due and payable September 1, 1928, and annually thereafter, are not liens on said timber, then the deed complies with the contract between plaintiffs and defendants, and plaintiffs are entitled to a decree directing the defendants to comply with the terms and provisions of the contract."

Upon the facts and agreement, as presented, the trial judge held that the deed tendered was in compliance with the contract,...