Grier v. Rhyne

• Decision Date: 30 June 1873
• Citation: 69 N.C. 346
• Court: North Carolina Supreme Court
• Parties: W. W. GRIER and others v. MOSES H. RHYNE.

69 N.C. 346

W. W. GRIER and others

v.MOSES H. RHYNE.

Supreme Court of North Carolina.

June Term, 1873.

A contract to convey “a certain piece of land in the county aforesaid adjoining the lands of” A and B “and others, being a part of the Alexander tract, supposed to contain 30 or 35 acres,” is so vague and indefinite that a Court cannot enforce it specifically.

CIVIL ACTION to recover a tract of seventy acres of land and damages, tried before Logan J., at Spring Term, 1873, of GASTON Superior Court.

The following is the case “settled” and transmitted to this Court:

Plaintiffs claimed the land as purchasers under the proceedings in an attachment which was in evidence against one G. C. Rhyne, under whom defendant also claimed.

The attachment was issued 10th June, 1869, levied on the land on the 12th, and on the 24th July judgment was rendered in favor of plaintiffs for $178.05; the same was docketed on the 6th August, an execution issued, and at the sheriff's sale, plaintiffs became the purchasers, bidding $180, to whom the sheriff made, on the 7th November, 1870, a deed for the whole 70 acres.

Defendant admitted himself in possession, and offered in evidence a bond from the said J. C. Rhyne, in the penal sum of $1,000 of date, 9th April, 1869, and conditioned as follows:

“The condition of this obligation is such that whereas the above bounden J. C. Rhyne, hath contracted and agreed to sell and convey to the said M. H. Rhyne and his heirs, a certain piece of land in the county and State aforesaid, adjoining the lands of S. J. Suggs and M. H. Rhyne and others, being a part of the “Alexander” tract of land, supposed to contain 30 or 35 acres, on receiving the sum of $14 per acre, being the price agreed on between the parties.

Now, therefore, if the said Rhyne, on receiving the said purchase money, together with the lawful interest that may accrue on the same, shall well and truly at his own proper costs and charges, make and execute to the said M. H. Rhyne and his heirs, a good and sufficient deed of conveyance with general warranty and full covenants to convey and assure him, the said M. H. Rhyne, and his heirs, a good and indefeasible estate of inheritance in fee-simple, in and to the aforesaid tract of land, with the privileges and appurtenances thereto belonging or in anywise appurtaining, free and discharged of any and all incumbrance whatever, then the above obligation to be void,” &c.

Defendant then offered in evidence the deed of the said J. C. Rhyne and wife, dated 10th of August, 1869, conveying the whole of the “Alexander” tract, containing 70 acres to defendant, reciting as the consideration therefor, the sum of $800, in hand paid, under the following boundaries and description, viz: (Here follows the boundary.)

One Shipp, a witness for defendant, testified that he wrote the foregoing bond, and the day J. C. Rhyne signed it, he left the county; that said Rhyne was indebted to him, as executor, the sum of $590, specie; that in a few days after the bond was signed the defendant paid $200 on the note, and one A. P. Rhyne gave him his due bill for $300, which was soon paid off, and which discharged his debt, one Lineberger having before made a payment on it.

Defendant asked this witness if the parties (to the bond) went around the land and marked off what was intended to be embraced in the bond? The question was objected to by plaintiff but received by the Court. Witness answered and stated that he was present and stepped off the ground meant to be included in the bond, and the same was selected from that part of the ““Alexander” or 70 acre tract, next to and adjoining the defendant's land, and from their stepping off the same, it was estimated that it would amount to 30 or 35 acres; that it would yield 15 or 20 bushels of corn and 500 lbs. of cotton per acre. In the Summer witness wrote to J. C. Rhyne concerning the attachment, advising him to return, which he did, and made the deed to the defendant for the whole 70 acres.

J. C. Rhyne, himself, called by plaintiffs, testified that he truly owed the amount recovered by plaintiffs in their attachment; that he also owed the witness (Shipp) as before stated, and A. P. Rhyne. That after his return from Mitchell county, where he had been, he made the deed to M. H. Rhyne; that no money passed, but out of it was to be paid what was due to Shipp, and the balance to A. P. Rhyne.

On this evidence the plaintiff insisted:

1. That they were entitled to the whole 70 acres of land.

2. That the bond for title was invalid for uncertainty as to land intended to be conveyed.

3. That the delivering up of the bond for 30 or 35 acres, and taking a deed for 70 acres was a voluntary rescision and cancellation of the bond, and the covenants and rights existing under it, and having taken place after the levy, the deed made in pursuance of the new contract was void as to creditors and purchases under the venditioni exponas.

4. That if the deed, absolute on its face, was executed with parol trusts in favor of third parties, it was void as to creditors.

5. That if M. H. Rhyne had paid only $200 of the purchase money and not otherwise bound himself for the residue of the purchase money, the deed is void--M. H. Rhyne not being a bona fide purchaser.

As to the second of the above points, and the only one considered in this Court, his Honor charged...