Fortune v. Watkins

CourtUnited States State Supreme Court of North Carolina
Citation94 N.C. 304
Decision Date28 February 1886
PartiesWM. P. FORTUNE v. CHARLES WATKINS.
OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Shipp, Judge, and a jury, at Fall Term, 1884, of the Superior Court of BUNCOMBE county.

On the 25th day of August, 1874, the parties to the action entered into a mutual agreement for the sale and purchase of the tract of land mentioned in the complaint, in pursuance of which, the defendant then paid three hundred dollars, and executed his three several notes under seal to the plaintiff, payable at one, two and three years from date, each in the sum of eighteen hundred and thirty-three dollars, and all bearing interest from date; and the plaintiff gave the defendant his bond, in the penal sum of eleven thousand dollars, with condition for making him a good title in fee to the premises, on payment of all the purchase money. The contemporary payment was not made in money, but in executing a title bond to the plaintiff, for a small tract then owned by the defendant, and of that estimated value, which constitutes a part, and is embraced within the boundaries of the large tract described in the plaintiff's bond, and to be reconveyed with the other on the terms therein set out.

The note earliest maturing, was assigned to one E. Sluder, who, as such assignee, put it in suit and recovered judgment for the amount due.

The plaintiff brought his first action on the second note after it became due, but before the maturity of the last, and on April 19th, 1879, a second action was instituted on this last bond, which actions, by consent, at Spring Term, 1883, were consolidated; and thereupon the plaintiff, retaining his complaint in the first action, and entering a nol. pros. as to the second cause of action therein contained, with leave of the court, put in an amended complaint, appropriate to his last action. The several complaints demand judgment for the amount due on the two notes; for the recovery of possession of the land, the subject matter of the contract, by a sale of the premises if necessary; and for general relief.

The answer filed to this amended complaint, admits the execution of the notes--alleging, however, that the contract was brought about, and the defendant induced to enter into it, by the artful and false representations, importunities and undue influence practiced by the plaintiff, a sharp, shrewd man, of large business experience, upon himself, whose mind had become enfeebled by intemperate habits, unfitting him for the management of his affairs, and taking care of his own interests,--and further and especially, that the plaintiff is unable to make the title required by his bond.

The defendant entered into possession of the premises at the time of the contract, and had the use and profits until the latter part of the year 1877, when, without objection, a receiver was appointed, and he refusing to accept, another, E. H. Merrimon, was by like consent, substituted in place of the other, possession was surrendered to him, and he permitted the plaintiff, as his tenant, to occupy the land, and appropriate the profits thereof to his own use.

The following issues were extracted from the contestant allegations, submitted to, and passed on by the jury, at Spring Term, 1884:

I. Was the defendant, at the time of the contract of sale drinking heavily, so that he was not in a condition to properly comprehend the effect of the transaction?

Answer--No, defendant competent to make the contract.

II. If so, did the plaintiff fraudulently induce him, while in such condition, to enter into said contract?

Answer--We find the plaintiff used strategy in making the trade.

III. What was the value of the land, mentioned in the contract, at the date thereof?

Answer--Five thousand dollars.

At the same time, this order was entered: “Ordered by the Court, with the consent of parties, that it be referred to George A. Shuford, Esq., an attorney of this Court, to investigate and report upon the title of the plaintiff to the land mentioned and described in the pleadings.

He shall report to the present term of the Court, the evidence offered before him, his findings of fact and conclusions of law.”

The referee proceeded at once to execute the commission--gave notice to the parties and their respective counsel--heard the witnesses, and reduced their testimony to writing--and made his report, with the evidence, during the same sitting of the Court. The result is thus reported:

“From said evidence I find the following facts:

I. That the land described in the pleadings in this action, and for which Wm. P. Fortune executed bond for title to Chas. Watkins on the 25th day of August, 1874, is the land described and embraced in the deed of said Fortune to said Watkins, and that the whole of said land is included in said deed.

II. That a portion of said land, to wit: 300 acres, more or less, is the tract of land, mentioned, described and conveyed in the deed from Thomas L. Harris and wife to W. P. Fortune, and is also the land described and released to said Thomas L. Harris, by indenture and mutual conveyance between him and Wm. F. Davidson, Executor of Abel Harris, and is the same described in the will and codicil of Abel Harris, devised by him to the said Thomas L. Harris, subject to the division provided for in said will and codicil.

III. That a part of said land, to-wit: about 30 acres, is included in the tract of land, mentioned, described and conveyed in the deed from Wm. F. Davidson, Executor of Abel Harris, to said W. P. Fortune, and is also included in, and is a part of, the tract of land described and released unto said Executor, by Thos. L. Harris, by indenture between them, herein filed, and also in the will and codicil of Abel Harris, and is a part of the land directed by him in said codicil to be sold by his executor, after the provision therein provided for.

IV. That the two tracts of land above mentioned, as described in deeds from Thos. L. Harris and Wm. F. Davidson, executors of Abel Harris, to W. P. Fortune, constitute the old Abel Harris place on Swannanoa river, and are included in the lands described in the deeds from Mary Tate to Samuel W. Davidson, and from Samuel W. Davidson to Abel Harris.

V. That Wm. P. Fortune, the plaintiff, and those under whom he claims, and those holding written deeds, by or through him, have been in the actual, open, notorious and exclusive possession of that part of the land sold by him to defendant, which is covered by said two tracts of land conveyed to said Fortune by Thos. L. Harris and Wm. F. Davidson, since the ............, 1829, under claim of title, and under known and visible lines and boundaries.

VI. That W. P. Fortune contracted for and purchased the said tract of land conveyed to him by Thos. L. Harris, in the month of September, 1866, and that said Fortune gave a bond for title in the sum of $........., and that said Fortune paid the purchase money for said land on the 30th day of September, 1867, and obtained a deed of conveyance therefor.

VII. That Wm. P. Fortune purchased the said land conveyed to him by Wm. F. Davidson, in the month of September, 1866, for the sum of $2,325, that said Fortune paid $1,000 of the purchase money in the month of September, 1867, and made payments on the remainder, at various times, until the year 1873 or 1874, when he paid the same in full. That at the time of the plaintiff's sale to defendant, and at the date of the commencement of this action, the legal title to said land was not in the plaintiff, but that the same was conveyed to him on the 28th day of March, 1883.

VIII. That Abel Harris left surviving him his widow, Elizabeth Harris, and that said widow is now dead.

IX. That the signature to the bond for title herein filed, is the signature of the defendant Charles Watkins, and that the same is his bond.

X. That the remainder of the land described in the pleadings, and sold by the plaintiff to defendant, not included in the said conveyance from Thomas L. Harris and Wm. F. Davidson to said W. P. Fortune, is covered by said bond of the defendant Chas. Watkins to the plaintiff W. P. Fortune. That said Fortune purchased said land from said Watkins on the 27th day of April, 1867, and fully paid the purchase money for the same, before the first day of January, 1868, but that no deed for said land has ever been executed to said Fortune by said Watkins.

XI. That a parole agreement was entered into between the plaintiff and defendant, at the time the plaintiff re-sold said land covered by said bond, to the defendant, to the effect that the plaintiff should execute no deed for said land re-sold, but should surrender to the defendant his bond for title to said land, on the defendant's complying with the conditions of plaintiff's bond to him for the lands described in the pleadings.

XII. That the plaintiff W. P. Fortune, married on the 7th day of July, 1859, and that his wife is still living, and that he has not been divorced from her.

XIII. That the defendant knew at the time he purchased the lands described in the pleadings from the plaintiff, that the plaintiff was a married man, and did not ask that the plaintiff's wife should join in the bond for title or deed of conveyance, to be executed in pursuance thereof.

XIV. That the plaintiff has endeavored to obtain his wife's signature to the deed herein tendered to the defendant, but she has not signed the same or any other deed for said land, and has refused to do so.

XV. That the plaintiff is seized of other lands, outside of the land sold to the defendant, of a value greater than one thousand dollars.”

The referee arrived at the following conclusions of law:

“I. That the portion of the lands described in the pleadings, which is covered by deeds from Thos. L. Harris and Wm. F. Davidson to the plaintiff, having been in the actual, open, notorious and exclusive possession of said Fortune, and others under whom he claims, for more than thirty years, under...

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33 cases
  • American Guar. Co. v. Sunset Realty & Planting Co.
    • United States
    • Supreme Court of Louisiana
    • November 6, 1944
    ...as the transferee or grantee was concerned. Emery v. Dana, 76 N.H. 483, 84 A. 976; Repass v. Jones, 102 N.C. 5, 8 S.E. 770; and Fortune v. Watkins, 94 N.C. 304. Furthermore, the point not raised in those cases that the entire deed or transfer was null because of the fraudulent alteration. I......
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • March 29, 1904
    ...could not obtain a decree compelling her to join in the deed. Farthing v. Rochelle, 131 N. C. 563, 43 S. E. 1; Fortune v. Watkins, 94 N. C. 304. The Code, § 2106, recognizes the right of the husband to alien without the joinder of the wife, the conveyance having no effect upon the wife's co......
  • Aiple-Hemmelmann Real Estate Company v. Spelbrink
    • United States
    • United States State Supreme Court of Missouri
    • May 13, 1908
    ...Weyand, 2 Grant's Cas. 103; Richmond v. Robinson, 12 Mich. 193; Phillips v. Staunch, 20 Mich. 369; Yost v. Devault, 9 Iowa 60; Fortune v. Watkins, 94 N.C. 304; Graybill Brauch, 89 Va. 895; Cowan v. Kane, 211 Ill. 572. (5) The court can not measure the value of inchoate dower by mortuary tab......
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • March 29, 1904
    ...the plaintiff could not obtain a decree compelling her to join in the deed. Farthing v. Rochelle, 131 N.C. 563, 43 S.E. 1; Fortune v. Watkins, 94 N.C. 304. The Code, 2106, recognizes the right of the husband to alien without the joinder of the wife, the conveyance having no effect upon the ......
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