Hodges v. Latham

• Decision Date: 18 October 1887
• Citation: 3 S.E. 495,98 N.C. 239
• Parties: HODGES v. LATHAM.
• Court: North Carolina Supreme Court

3 S.E. 495

98 N.C. 239

HODGES v. LATHAM.

Supreme Court of North Carolina

October 18, 1887

G. H Brown, for plaintiff.

DAVIS J.

Civil action tried before AVERY, J., at June term, 1887, of Beaufort superior court, for an alleged breach of warranty and damages therefor. The plaintiff offered in evidence a deed from D. H. Latham, the defendant, and Harriet L. Latham his wife, dated December 22, 1875, duly executed, proved, and registered, conveying the land therein described to the plaintiff, in fee, with warranty of title. He then testified in his own behalf, that he purchased the "land described in the deed, and gave his notes of one hundred dollars each, payable one each for four successive years, and one payable on demand." That he paid the first and second notes, and on December 3, 1878, he paid $25, for which he exhibited defendant's receipt. He further testified that he had paid in all $245 prior to December 3, 1878, which sum he claimed, with interest, from that date as damages. Plaintiff further testified that he worked on the land in 1876, and cultivated three crops; that the next year he rented it to William Mitchell, a colored man; that in October, 1879, being the October after the date of the $25 receipt, he went to Pitt county, and returned about Christmas of the same year and found that Willis Cherry had got possession of the land. Cherry had married one of Crandall C. Little's daughters, (said Little being the person to whom defendant had conveyed the land prior to the war, as set forth in the annexed records;) that he went to Latham, and asked him to give up the notes that remained unpaid. He refused to give them up. After plaintiff came back from Pitt county, he went with Col. Wharton to defendant. Wharton told him that he could make the title good, and defendant said it was good, and he was not going to bother any more about it. Witness stated on cross-examination that he did not abandon the land, but that witness' tenant, Mitchell, had lost possession when witness returned at Christmas, 1879; that Latham recovered two judgments against him on September 30, 1879, before a justice of the peace, one for $200 and one for $100, and had them docketed in the superior court. It is admitted that the said judgments were rendered September 30, 1879, for the three purchase-money notes for said land, and that witness did not resist a recovery on such judgment. It is further admitted that Cherry took possession between the time when the plaintiff left the land in charge of his tenant, Mitchell, and went to Pitt county, and the date when the defendant issued the summons against the heirs at law of C. C. Little, which was November 28, 1879. Plaintiff then introduced the record of a suit in behalf of D. H. Latham against Willis Cherry and others, heirs at law of C. C. Little, commenced November 28, 1879. By virtue of the various orders and decrees in this suit the land was sold and conveyed to W. A. Blount, by the defendant, on the first of November, 1886, and sale confirmed.

The record referred to, and sent up as part of the transcript shows that a summons originally issued the twenty-eighth day of November, 1879, in the name of D. H. Latham v. Willis Cherry and others, and a petition representing that, in 1861, the plaintiff in that proceeding (D. H. Latham) sold to Crandall C. Little a parcel of land situated in Beaufort county for the price of $700; that, at the time of the purchase, Little executed his note to said plaintiff, Latham, for the purchase...