Combes v. Adams

• Decision Date: 22 December 1908
• Citation: 150 N.C. 64,63 S.E. 186
• Parties: COMBES . v. ADAMS et al. SAME . v. STEWART et al.
• Court: North Carolina Supreme Court

63 S.E. 186

150 N.C. 64

COMBES .

v.ADAMS et al.

SAME .

v.STEWART et al.

Supreme Court of North Carolina.

Dec. 22, 1908.

1. Specific Performance (§ 64^*)—Nature of Remedy—Contract.

A binding contract to convey land will be specifically enforced in the absence of fraud, mistake, undue influence, or oppression.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. § 191; Dec. Dig. § 64.*]

2. Specific Performance (§ 49*)^Defenses —Inadequacy of Price.

Mere inadequacy of price will not in general prevent specific performance of a valid contract for the sale of land.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. § 151; Dec. Dig. § 49.*]

3. Frauds Statute of (§ 116*) — Sale of Land—Signature by Agent.

The statute of frauds is satisfied by a contract for the sale of land signed by the owner's lawfully authorized agent, though the principal is undisclosed.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 251; Dec. Dig. § 116.*]

4. Vendor and Purchaser (§ 231*)—Sale of Land—Contract—Registration.

Under Revisal 1905, § 980, authorizing registration of contracts for the sale of land, that contract, otherwise valid, which is first registered, confers the superior right.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 528; Dec. Dig. § 231.*]

5. Brokers (§ 52*)—Contract—Execution— a uth o uit y—'' neg otiate.''

Where a broker's contract of authority authorized him to negotiate for the sale of the lands in question at $5 an acre for 30 days, and the owners bound themselves to execute good conveyances to such purchaser as the brokers might produce on payment of the price, the ' term "negotiate" imported authority on the part of the brokers to make a binding sale agreement, and the contract did not therefore limit their authority to finding a purchaser ready and able to pay the price.

[Ed. Note.—For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. § 52.*

For other definitions, see Words and Phrases, vol. 5, pp. 4771, 4772.]

6. Specific Performance (§ 123*)—Conspiracy—Fraud—Questions for Jury.

Where, in a suit for specific performance of a land contract, defendants sought to impeach plaintiff's claim by allegations and evidence of conspiracy and fraud, such questions were for the jury.

[Ed. Note.—For other cases, see Specific Performance, Dec. Dig. § 123.*]

7. Injunction (§ 163*)—Restraining Order —Continuance.

Where the evidence raises serious question as to the existence of facts which make for plaintiff's right and sufficient to establish it, a preliminary restraining order will be continued to the hearing.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 358; Dec. Dig. *§ 103.*]

8. Appeal and Error (§ 449*)—Transfer of Cause—Effect—Subsequent Proceedings.

After an appeal to the Supreme Court from an interlocutory order continuing a preliminary restraining order to the hearing, the disposition of the order and all questions incident thereto and necessarily involved in the ruling thereon are carried by the appeal to the Supreme Court and the trial judge has no power to entertain a subsequent motion to set aside the restraining order because of newly discovered evidence.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 449.*]

Appeal from Superior Court, Macon County; Peebles and Ferguson, Judges.

Action by J. J. Combes against T. T. and J. B. Adams and others. From an order continuing a preliminary restraining order to the hearing, defendants appeal. After this appeal had been perfected, defendant Henry Stewart applied to have the restraining order set aside for newly discovered evidence, and, from an order denying such application, he appeals. Affirmed on both appeals.

The action was instituted by plaintiff to enforce specific performance of a contract to convey land, situated in Macon county, against defendants, T. W. McLoud, attorney in fact of Henry Stewart, Sr., Cassie Stewart, T. T. Adams, and J. B. Adams, under the firm name of T. T. Adams Co., Henry Stewart, Jr., and Lula Stewart, T. B. Shepherd, and R. A. Shepherd, plaintiff claiming the right to such relief under and by virtue of the following instruments:

Exhibit-A: "This agreement entered into this the 4th day of April, 1908, by and between Henry Stewart, Sr., and Cassie Stewart, by T. W. McLoud, their attorney in fact, and Henry Stewart, Jr., of Highlands, N. C, of the first part, and T. B. Shepherd of the second part, witnesseth: That the said parties of the first part hereby authorize the said party of the second part to negotiate for the sale of certain lands in Highlands township, known as Stewart lands, except therefrom the lands known as the Dobson lands, at the price of five dollars per acre; said boundary being estimated approximately to contain three thousand acres. That the said party of the second part is to have as his commission for the effecting of said sale the sum of 10 per cent, of the price for which said lands are sold, the same to be paid in equal proportions by the several parties of the first part; and the parties of the first part agree with the party of the second part that this authority shall take effect on the 29th day of April, 1908, and continue for a period of thirty days; and they further agree to allow a reasonable time thereafter for examination of titles by the purchaser, and survey'of the lands, if required, and that they will execute good and sufficient conveyances in the law to such purchaser as the party of the second part shall produce to the parties of the first part upon the tender by such purchaser of the purchase price per acre as herein stipulated for. Witness our hands the day and year above written. Henry Stewart, Sr., Cassie Stewart,-By T. W. McLoud, Their Attorney in Fact. Henry Stewart, Jr. Attest: W. T. Potts."

Exhibit B: "North Carolina, Macon Coun-ty. This agreement made and entered into this the 14th day of May, 1908, by T. B. Shepherd and wife, R. A. Shepherd, of Macon county, and state of North Carolina, parties of the first part, and J. J. Combes, of Swain county, and state of North Carolina, party of the second part, witnesseth: That for and in consideration of the payment by party of the second part during the life of this agreement of the sum of six dollars per acre to parties of the first part for all the lands described and defined in a contract made and entered into on the 4th day of April,.1908, between T. B. Shepherd and Henry Stewart, Sr., and Cassie Stewart, by their attorney in fact T. W. McLoud, and Henry Stewart, Jr., which contract was registered on the 16th day of April, 1908, in 3-A of Deeds in Register's office of Macon County, N. C., at pages 272 and 273, to which, reference is hereby specially made for more definite description. Said parties of the first part, upon payment of the price as above set forth by party of the second part, agree to make or cause to be made a deed of the kind and nature mentioned in said contract or agreement to the party of the second part. Said parties of the first part agree to allow said party of the second part a reasonable time to examine and investigate the titles to said lands above described in the event that said party of the second part decides to purchase or take said lands before the expiration of this agreement. This agreement shall be null and void on and after the 33 st day of May, 1908. T. B. Shepherd. [Seal.] R.

A. Shepherd. [Seal.] R. M. Ledford, C. S. C. Filed May 26, 1908."

Exhibit A was registered in Macon county April 16, 1908, and Exhibit B, the contract with plaintiff, was executed on May 14, 1908, and registered in Macon county on same date. Plaintiff alleges his readiness and ability to presently comply with the contract on his part. Defendants T. T. and J. B. Adams hold a contract for the same lands executed by Henry and Cassie Stewart by T. W. McLoud, their attorney in fact, and Henry and Lula Stewart, bearing date of the 29th of April, 1908, and registered in Macon county May 25, 1908. As ancillary to plaintiff's principal demand for specific performance, plaintiff sued out a restraining order in the cause, alleging that defendants T. T. and J.

B. Adams, claiming the right to do so under their contract, have wrongfully and unlawfully entered upon said land, and are committing divers trespasses and depredations thereon, and are threatening to cut and destroy and remove the valued timber growing in and upon said land, to plaintiff's great and irreparable damage, and that said defendants will carry out this threat and wrongful purpose unless restrained, etc. Defendants T. T. and J. B. Adams admit that they had entered upon said land, with the intent to acquire and own the same...