Culbreth v. Britt Corp.
| Decision Date | 09 November 1949 |
| Docket Number | 378 |
| Citation | 56 S.E.2d 15,231 N.C. 76 |
| Parties | CULBRETH v. BRITT CORPORATION. |
| Court | North Carolina Supreme Court |
Civil action instituted 9 July, 1946, to recover for alleged breach of warranty of title to certain tract of land in Sampson County, North Carolina--the same being composed of the two tracts of land, one containing 49 acres and the other 50 acres, designated in combination as 100 acres, which were the subjects of controversy in the action entitled Culbreth v Caison, heard in this Court on appeal,--the decision being reported in 220 N.C. 717, 18 S.E.2d 136, to which this action is a sequel.
The agreed statement of facts on which this action was heard in Superior Court incorporated substantially the same facts as those stipulated in the said former action as disclosed by the record on the said appeal. That appeal involved the interpretation of Items 1, 2 and 3 of the will of Thomas Neill Culbreth,--particularly Item 3 which related to the Cornelius Culbreth place, of which the property there in controversy is a part.
The court there held, summarily stated, that Thomas Neill Culbreth (who died testate in 1903), under the terms of his will, devised the property in question to his children for life with restricted power of disposal and remainder to their children; that, therefore, in the proceeding for partition of said property in kind among his children, including his son, L. L. Culbreth, and his daughter, Amelia Underwood, instituted 30 March, 1904, and concluded 20 May, 1904, his son, L. L. Culbreth, took only a life estate in respect of the 49-acre tract allotted to him and Amelia Underwood took only a life estate in respect of the 50-acre tract allotted to her; that the devise being coupled with the power to convey to one or more of the brothers or sisters in fee simple, and providing that such brother or sister shall hold the land so purchased for life with remainder in fee to the purchaser's children, L. L Culbreth, by the deed from his sister Amelia Underwood and her husband, dated 5 February, 1905, and conveying the said 50-acre tract, acquired only a life estate therein, with remainder to his children; and that, hence, L. L. Culbreth and his wife, by the indemnity deed of trust, that is, the deed of trust dated 22 April, 1929, by which they conveyed said land to M. T. Britt, Trustee, to indemnify the Britt Corporation, cesui que trust, against any loss by reason of its guaranty of the payment of certain notes, under which deed of trust, by mesne conveyance, the defendants there claimed, conveyed no more than this life estate of L. L Culbreth.
And, in this connection, these facts also appear:
1. That the said deed of trust from L. L. Culbreth and wife to M. T. Britt, Trustee, is second to a prior deed of trust executed by them, conveying the same land, as security for certain notes, the payment of which is guaranteed by the Britt Corporation, and contains (1) power of sale in case of default in payment as there specified, and (2) covenants of seizin, right to convey, freedom from other encumbrances, and 'that they will warrant and forever defend their said title to said premises against the lawful claims of all persons'.
2. That on or about 2 February, 1932, M. T. Britt, Trustee as aforesaid, pursuant to the power of sale contained in said deed of trust, foreclosed the same, and executed and delivered a trustee's deed to the purchaser at such sale, The Britt Corporation, purporting to convey said lands.
3. That thereafter on 23 December, 1933, The Britt Corporation, for a valuable consideration, to wit, $1,600.00 paid to it by D. W. Culbreth and wife, Willie E. Culbreth, conveyed the said 100 acres to D. W. Culbreth and wife, Willie E. Culbreth as tenants by the entirety, by deed sufficient in form to convey whatever title the Britt Corporation owned in the said land, which deed contained habendum and covenants as follows: 'TO HAVE AND TO HOLD the aforesaid tract or parcel of land, and all privileges and appurtenances thereto belonging, to the said D. W. Culbreth and Willie Culbreth, and their heirs and assigns, to their only use and behoof forever.
'And the said The Britt Corporation, for itself and its heirs, executors and administrators, covenant with said D. W. Culbreth and Willie Culbreth and their heirs and assigns that it is seized of said premises in fee simple; that the same are free and clear from all encumbrances, and that it does hereby forever warrant and will forever defend the said title to the same against the claims of all persons whomsoever.'
4. That on 21 November, 1935, D. W. Culbreth and wife, Willie E. Culbreth, for a valuable consideration of $2,000.00 to them paid by W. C. Caison, executed their deed to him, purporting, and in sufficient form to convey said lands in fee simple, and containing specific habendum and covenants of like effect to those above quoted from the deed of The Britt Corporation to them. That Willie E. Culbreth, wife of D. W. Culbreth, is a sister of L. L. Culbreth and a daughter of Thomas Neill Culbreth--and is named in Item 1 of the latter's will.
5. That on i6 February, 1940, Emmett Culbreth and others, children of L. L. Culbreth, who died intestate 19 March, 1937, instituted an action in Superior Court of Sampson County against said W. C. Caison and his wife, Nellie Caison, to recover possession of said 100-acre tract of land, and were therein adjudged to be the owners of said lands. And on appeal to the Supreme Court of North Carolina the judgment of Superior Court was affirmed by opinion filed 7 January, 1942, and reported in 220 N.C. 717, 18 S.E.2d 136, recited hereinabove. And that thereupon W. C. Caison was ousted and dispossessed of said land.
6. That in April 1941 during the pendency of the action described in the last preceding paragraph, 'W. C. Caison caused notice of the pendency of said action, the cause of action stated therein, and to come in and defend the same in accordance with their covenants and warranty, to be served by the Sheriff of Sampson County upon Janie Culbreth (widow of L. L. Culbreth, deceased), The Britt Corporation, and Willie E. Culbreth, individually and as executrix of the estate of D. W. Culbreth, deceased, but neither of said parties so notified ever came in and became a party to said action or defended said action, nor did either of them contribute anything whatever in defense thereof.'
7. That on 20 February, 1943, said W. C. Caison brought an action in Superior Court of Sampson County against said Willie E. Culbreth, individually and as executrix of the estate of D. W. Culbreth, to recover his loss and damages by reason of the breach of their warranty to him of the title to said 100-acre tract of land,--by the failure of such title as result of the said action against him by the children interest, costs and attorney's fee expended of L. L Culbreth, to wit, $1,950.00 with in defending said action. And that on 17 August, 1943, this claim of W. C. Caison was settled by Willie E. Culbreth, individually and as executrix of the estate of D. W. Culbreth paying to him the sum of $2,926.67,...
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