Ex Parte Alexander Et Al.,appeal Of Gwaltney.

• Decision Date: 24 May 1898
• Citation: 30 S.E. 336,122 N.C. 727
• Court: North Carolina Supreme Court
• Parties: Ex parte ALEXANDER et al. Appeal of GWALTNEY.

30 S.E. 336

122 N.C. 727

Ex parte ALEXANDER et al.

Appeal of GWALTNEY.

Supreme Court of North Carolina.

May 24, 1898.

Judicial Sale—Notice of Easement.

A purchaser at judicial sale is conclusively presumed to know of the open possession by a railroad of an easement consisting of a right of way across the land at the time of the sale, and of the extent thereof.

Appeal from superior court, Buncombe county; Brown, Judge.

One Gwaltney and another purchased land at a judicial sale of land for division in an ex parte proceeding brought by Nannie J. Alexander and others, heirs of A. M. Alexander. From a judgment for a balance due on the purchase price, Gwaltney appeals. Affirmed.

J. M. Gudger, Jr., and Tucker & Murphy, for appellant.

Davidson & Jones and F. A. Sondley, for appellees.

FAIRCLOTH, C. J. The appellant, Gwaltney, and one Shepard, were the purchasers at a judicial sale of land for division in an ex parte proceeding, brought by the heirs of A. M. Alexander. The purchasers paid 10 per cent. cash, and gave four notes for the balance, payable one, two, three, and four years after date of sale, which was on February 14, 1891. The purchasers entered into possession, made some improvements, received the rents and profits, and made another payment on the purchase price, and appellant bought the interest of his co-purchaser, Shepard. The land sold lies on the west bank of the French Broad river, in Buncombe county, at Alexander's Station. Upon notice to the purchasers to show cause why judgment should not be entered against them for balance due on said land notes, they answered, on August 15, 1894: (1) That at the sale it was represented by the commissioner to sell, by petitioner's counsel, and the auctioneer that the railroad had no title, except the actual roadbed covered by the cross-ties, about eight feet, and that the purchaser would get a good title, except the space covered by said roadbed and cross-ties; and that they bid with that understanding. On the trial it was admitted by the respondents "that there were no false or fraudulent representations made by the commissioner or his attorney to deceive purchasers." This admission takes this defense out of the case. (2) Defense: That the Western North Carolina Railroad runs through the most valuable part of said land along the river shore, and said road claims to own 100 feet on either side of the main track, which greatly reduces the value of the land purchased by respondents. The proofs establish these...