Currie v. Hawkins

• Decision Date: 14 April 1896
• Citation: 24 S.E. 476,118 N.C. 593
• Parties: CURRIE v. HAWKINS.
• Court: North Carolina Supreme Court

24 S.E. 476

118 N.C. 593

CURRIE v. HAWKINS.

Supreme Court of North Carolina

April 14, 1896

Appeal from superior court, Montgomery county; Norwood, Judge.

Action by J. C. Currie against Colin M. Hawkins. Judgment for defendant, and plaintiff appeals. Reversed.

In an action by a grantee against his grantor to recover for a deficiency in land sold and conveyed by a deed describing a larger tract and excepting therefrom portions conveyed to others, the number of acres in the exceptions being stated the plaintiff may assume the number of acres excepted to be as so stated, and is not required to prove that the previous grants were full.

Douglass & Spence and Black & Adams, for appellant.

R. O Burton, for appellee.

MONTGOMERY J.

The plaintiff's complaint sets out two causes of action. In the first it is alleged that, by the terms of a deed executed to the plaintiff by the defendant, it is stipulated that, if it should turn out that the timber on any part of the land conveyed should prove to have been "boxed" or worked for turpentine before the execution of the deed, then such lands should be estimated at 50 cents per acre, whereas $3.68 was the amount paid per acre for the land. The plaintiff alleges, further, as to the first cause of action that, subsequently to the execution of the deed and the payment of the purchase money, it was ascertained that the timber on 119 acres of the land had been boxed or worked for turpentine; and the plaintiff demands of the defendant the difference between the amount paid for the land upon which the timber was so boxed and the 50 cents estimated value according to the terms of the deed. The answer denied the cause of action. The court settled the issues, and there appears in the record no exception to them by the plaintiff. No issue was submitted as to this cause of action, and none asked for by the plaintiff. The rulings of his honor therefore, in refusing to allow testimony on this matter, were correct.

The second cause of action is for the reimbursement to the plaintiff by the defendant of an amount which the plaintiff alleges that the defendant agreed to pay him in case there should be a shortage in the number of acres in the land conveyed in the deed. The purchase money named in the deed is $6,500, and the number of acres 1,768. The plaintiff was allowed to testify without objection, and said: "I started to read the deed, and Mr. Hawkins, the defendant, took it and read it to me. I asked him the meaning of ·more or less' in the deed, and he said that it was an expression usually put in deeds. He said that, if the deficiency was small, it would go for nothing; but he agreed that, if there were 20 acres more than 1,768 acres, I must pay him for the excess, and that, if it lacked 20 acres, he would pay me the deficiency. He had told me the tract contained 1,767. This was some days before the execution of the deed." As we have said, the defendant made no objection to the testimony, when offered. But, as the ruling of his honor to which we shall presently refer may possibly have been based partly upon the effect of this testimony, we will observe that it was perfectly competent for the purpose for which it was offered. McGee v. Craven, 106 N.C. 351, 11 S.E. 375; Sherrill v. Hagan, 92 N.C. 345. There was a consent order entered up in the cause, by which it was provided that N.M. Thayer should make a survey of the lands conveyed by the defendant to the plaintiff; and, on the trial, the plaintiff introduced Mr. Thayer to prove the alleged deficiency in the number of acres in the land conveyed. Without objection, he testified as follows: "I know the corners and boundaries; that is, I surveyed and found them. I found within the boundary 3,470 acres. I had the defendant's deed to plaintiff at the time I made the survey, and surveyed by it. I have made a calculation of the lands excepted, and summed them up. I found that the amount of the acres excepted, taking what the deed said as to the acres in the excepted tracts, amounted to 1,948.6 acres. I did not survey the excepted tracts. This taken from 3,470 acres leaves 1,521.4 acres. This amount makes a shortage of 246.6 acres in the deed. I am now the county surveyor; have been so about 20 years, but not regularly for that time. I took the angles of the courses and distances on my field book. I have not my field notes with me. I can't say that the acreage in the exceptions is correct." The date of the deed from defendant to plaintiff is the 1st day of December, 1885, and the summons in this action is dated the 28th of November, 1888,--three days before it is admitted that the statute of limitations would have barred the action. The sheriff's return upon the summons signed by him is as follows: "Received February the 11th, 1889. Served February 11th, 1889, by reading the above summons to C. M. Hawkins." The following issues were submitted to the jury: "(1) Did the defendant agree with the plaintiff, at the time the deed was executed and delivered and the money paid, and before the deed was delivered and the money paid, that he would repay to the plaintiff the price per acre for any number of acres that the deed might contain less than 1,768 acres? (2) Did the boundaries in the deed, exclusive of the lands excepted, convey less than 1,768 acres; and, if so, how many acres less? (3) Did the plaintiff's alleged cause of action accrue within three years next before the beginning of this action? (4) How much is the plaintiff entitled to recover?" After the testimony was in, his honor intimated that he would instruct the jury "that the testimony was not sufficient to establish plaintiff's claim of deficiency in acreage, and that, if they believed the testimony, they should answer the third issue ' No."' The plaintiff submitted to a nonsuit, and appealed from the judgment.

The testimony of the plaintiff as to the alleged agreement by the defendant to pay him the...