Eames v. Armstrong

• Decision Date: 13 November 1907
• Citation: 59 S.E. 165,146 N.C. 1
• Parties: EAMES v. ARMSTRONG et al.
• Court: North Carolina Supreme Court

59 S.E. 165

146 N.C. 1

EAMES v. ARMSTRONG et al.

Supreme Court of North Carolina

November 13, 1907

Appeal from Superior Court, Rowan County; Moore, Judge.

Action by Richard Eames against C. A. Armstrong and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This was an action for breach of covenant of seisin. The facts, in regard to which there is no controversy, are as follows: The tract described in the deeds and in the complaint as the "Russell Gold Mine," containing 356 acres, was prior to May 5, 1902, the property of Mrs. Elizabeth Eames the wife of plaintiff. The tract described as the "Coggins Meeting House," containing 3 acres, was at said date, the property of plaintiff. On May 6, 1903, W D. Clark, sheriff of Montgomery county, executed to defendant a deed conveying, by the same metes and bounds set out in the complaint, the Russell Gold Mine, containing 359 acres. The preamble to the deed is in the following words: "Whereas, at a sale of real estate for the non-payment of taxes made in the county aforesaid on the 5th day of May, 1902, the following described real estate was sold, to wit: Three hundred and fifty-nine acres in Eldorado township listed by Richard Eames," etc. In this, and all other parts, the language of the deed conformed to the provisions of the statute. Revisal 1905,§ 2906. The deed was duly proven and recorded May 7, 1903. On May 7, 1903, defendant C. A. Armstrong and his wife, in consideration of $2,300, executed a deed to plaintiff, conveying, by metes and bounds as in the deed to them, the Russell Gold Mine, containing 356 acres, and, by a separate description, the Coggins Meeting House, of 3 acres. This deed was duly proven and recorded, and contains the following covenant: "To have and to hold the aforesaid tracts of land, *** and the said parties of the first part covenant that they are seized of said premises in fee and have a right to convey the same in fee simple, that the same are free and clear from all encumbrances." On May 9, 1903 plaintiff and his wife conveyed both said tracts to Geo. T. Whitney in consideration of $5,000. Plaintiff paid to defendant the consideration of $2,300 named in his deed. Plaintiff alleges that, at the time defendant executed the deed of May 6, 1903, and made the covenant therein, he was not seised of either of the tracts therein conveyed, and had no title thereto, and for breach of said covenant demands as damages the amount of the purchase money. Defendant denies the allegation, and alleges seisin, etc. In response to issues submitted, the jury found that at the date of the deed the Coggins Meeting House was the property of plaintiff, and, under the instructions of the court, found that plaintiff was not entitled to recover any damage on account thereof. That defendant was seised of the Russell Gold Mine, and that there had been no breach of the covenant in respect thereto. It was in evidence: That plaintiff was desirous of selling both tracts to one Whitney, and had entered into a contract to do so for the sum of $5,000. That his attorney, residing in Salisbury, went to the town of Troy, Montgomery county, for the purpose of examining the title. That a few days thereafter plaintiff met defendant in Troy, and, after some negotiations, agreed to pay him $2,300 for deed with full covenants. That some question was raised in regard to whether the sheriff's deed covered the Coggins Meeting House, whereupon plaintiff said that, while the land was his, defendant could put it in the deed to satisfy Mr. Whitney, and that no trouble would ever come to him on account of it. Upon the execution of the deed by plaintiff and wife to Whitney, he went into, and has continued in, the unmolested possession of the land. His honor instructed the jury to answer the issues. Judgment was thereupon rendered for defendant. Plaintiff's exceptions are noted in the opinion. Plaintiff appealed.

J. S. Henderson, for appellant.

T. F. Klutz, L. H. Clement, and T. J. Jerome, for appellees.

CONNOR J.

We were of the opinion, when this case was here, at the fall term, 1906, that the covenant of seisin, extended to the Coggins Meeting House tract. 142 N.C. 506, 55 S.E. 405. It appears that, at the time the deed was made by Armstrong to the plaintiff, the title to that tract was in the plaintiff, and that this was well known to him. It further appears that plaintiff immediately conveyed the same land to Whitney, who went into possession and remains therein. In Fitch v. Baldwin, 17 Johns. (N. Y.) 166, it is said: "The covenant of seisin extends only to guarantee the bargainee against any title existing in a third person, and which might defeat the estate granted." In Furness v. Williams, 11 Ill. 229, Treat, C.J., says: "It is attempted, on the part of defendant, to establish a breach of the covenant by proving that he was, himself, seised, instead of his grantor. That law does not allow this to be done. The covenant of seisin extends only to a title existing in a third person. It does not embrace a title that may be already in the grantee. The grantee is estopped from setting up the title previously acquired against his vendor." Tiedeman on Real Prop, § 851; Rawle on Cov. 431; Jones, Real Prop. 444; 11 Am. & Eng. Enc. 442. His honor therefore correctly instructed the jury to answer the issue in regard to that tract.

For the purpose of showing that defendant was not seised of the Russell Gold Mine tract, plaintiff sought to attack the deed executed by the sheriff to the defendant of May 6, 1903. To this end he offered to show that a tender of the taxes, interest, cost, etc., was made by his attorney and the attorney of Mr. Hambley to the defendant on May 5, 1903, and declined. He further offered to show that plaintiff tendered the amount to both the defendant and the sheriff, and that both were declined. He further offered to show that defendant had not given the notice required by the statute before calling for the deed. To each of the questions bearing upon these contentions defendant objected. His honor ruled: "That plaintiff, not having shown that he had title to the Russell Gold Mine tract of 356 acres, at the time of the sale of the same for taxes on the 5th of May, 1902, and not having shown that he now claims the same under the person who had the title at the time of such sale, and not having shown that all taxes due upon the property had been paid to him or the person who had the title at the time of the sale, the court held that the plaintiff could not be permitted to question the title which had been acquired by the defendant under the sheriff's tax deed, nor could the plaintiff question the validity of the deed." The objection was sustained, and plaintiff excepted. It will be observed that the land conveyed by defendant to plaintiff was, at the time it was listed for taxation, sold, and the deed executed by the sheriff, the property of Mrs. Eames. The deed recites that it was listed by Richard Eames. This, we think, in view of the provisions of section 2894, Revisal 1905, immaterial. It is therein expressly provided that the fact that the land is listed in the name of some one other than the owner shall not invalidate the deed, unless it is shown that the true owner listed and paid the taxes on it. No evidence was offered that Mrs. Eames did either. The tender to redeem was not made by Mrs. Eames or any one acting for her or claiming under her. That her husband had no "estate or interest" in the land, notwithstanding birth of issue, is settled. Tiddy v. Graves, 126 N.C. 622, 36 S.E. 127. Hallyburton v. Slagle, 132 N.C. 948, 44 S.E. 655.

Plaintiff however, insists that he had a right to show that the defendant failed to give the notice required by section 2903, Revisal 1905, being sections 15-17, p. 790, c. 558, Laws 1901, and thereby invalidate the deed under the decision of ...