Knowles v. Wallace

• Decision Date: 04 November 1936
• Docket Number: 382.
• Citation: 188 S.E. 195,210 N.C. 603
• Parties: KNOWLES v. WALLACE et al.
• Court: North Carolina Supreme Court

188 S.E. 195

210 N.C. 603

KNOWLES v. WALLACE et al.

No. 382.

Supreme Court of North Carolina

November 4, 1936

Appeal from Superior Court, Duplin County; H. A. Grady, Judge.

Action by L. T. Knowles against J. H. Wallace and others, wherein named defendant filed a cross-action against defendant J. H Rehder. From a judgment for plaintiff and for Rehder on the cross-action, Wallace appeals.

Modified and affirmed.

Vendor who accepted payments under contract for sale of land he did not own, and allowed purchaser to take possession and make improvements prior to ejectment by true owner, held liable for amount of such payments and value of improvements less rental value of land while in purchaser's possession though interest under contract was unpaid, and contract provided it should be void for such nonpayment, since contract was induced by fraud.

The issues submitted to the jury and their answers thereto were as follows:

"1. Is the plaintiff L. T. Knowles the owner and entitled to the possession of the lands described in the complaint? Answer: Yes.

2. Is the defendant J. H. Wallace in the wrongful and unlawful possession of said lands so far as L. T. Knowles is concerned? Answer: Yes.

3. What is the fair rental value of said land since January 14, 1935, up to the present date? Answer: $125.00.

4. Did the defendant J. H. Rehder contract and agree with J H. Wallace to sell to him the lands in question under the terms named in the written memorandum dated September 30 1933, and put him in the possession of said lands under the terms of said memorandum? Answer: Yes.

5. If so, did J. H. Rehder wrongfully refuse to carry out the terms of said agreement as alleged in the answer of J. H. Wallace? Answer: No.

6. If so, what amount has J. H. Wallace paid to J. H. Rehder on the purchase price of said land? Answer: $278.29.

7. In what amount, if anything, has the value of said lands been increased, by reason of improvements placed thereon by J. H. Wallace? Answer: $200.00.

8. What was the fair rental value of said lands for the years 1933 and 1934? Answer: $150.00."

The judgment of the court below is as follows: "This cause coming on to be heard at the March Term, 1935, of Duplin Superior Court before His Honor, Henry A. Grady, Judge, and a jury, and the jury having found for its verdict the issues and the responses thereto as set out in the record, it is hereupon considered, ordered and adjudged, upon the verdict of the jury, that the plaintiff L. T. Knowles, is the owner of in fee simple and is entitled to the immediate possession of the following described real estate, lying and being in Rose Hill Township, Duplin County, North Carolina, containing 26 acres, more or less (describing same). It is further considered, ordered and adjudged that the plaintiff L. T. Knowles recover possession of said lands from the defendant J. H. Wallace, his agents, servants and tenants, together with plaintiff's cost incurred to be taxed by the Clerk. Let writ of possession issue. It is further considered, ordered, adjudged and decreed, that the plaintiff L. T. Knowles do have and recover of the defendant J. H. Wallace, and his surety E. J. Wells, the sum of $300.00, the penalty of the bond, to be discharged however upon the payment to the plaintiff by the defendant J. H. Wallace, and his surety, E. J. Wells, the sum of $125.00, for rents, and the cost of this action to be taxed by the Clerk. It is further considered, ordered and adjudged upon the verdict of the jury that the defendant J. H. Wallace take nothing by his cross-action against the defendant, J. H. Rehder, and that the defendant Rehder have and recover of the defendant J. H. Wallace his costs incurred, to be taxed by the Court. Henry A. Grady, Judge," etc.

The defendant J. H. Wallace made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be considered in the opinion.

Oscar B. Turner, of Rose Hill, for appellant J. H. Wallace.

Beasley & Stevens, of Warsaw, for appellee Knowles.

D. L. Carlton, of Warsaw, for appellee Federal Land Bank of Columbia.

Rivers D. Johnson, of Warsaw, for appellee J. H. Rehder.

CLARKSON Justice.

1. As to the first three issues, we see no error. On January 14, 1935, the plaintiff purchased from the Federal Land Bank of Columbia the land in controversy, paying for same $1,500 in cash, including taxes. There was nothing on the records in the office of the register of deeds in Duplin county, N. C., where the land was situated showing that either of the defendants J. H. Rehder or J. H. Wallace had any interest in the land in controversy.

In Bender v. Tel. Co., 201 N.C. 355, 356, 160 S.E. 352, quoting from Avery County Bank v. Smith, 186 N.C. 635, at page 641, 120 S.E. 215, citing numerous authorities, is the following: "Where the registration of an instrument is required, no notice to purchaser, however full and formal, will supply the place of registration." C.S. §§ 3308, 3309.

2. There is neither allegation nor sufficient proof that tends, in any way, to connect the defendant the Federal Land Bank of Columbia with the controversies involved in this action.

In the record is the following: "This cause coming on to be heard before His Honor Henry A. Grady, Judge Presiding, and being heard upon motion of D. L. Carlton, Attorney for the defendant The Federal Land Bank of Columbia, for judgment that this action be dismissed as to said defendant The Federal Land Bank of Columbia. It is ordered, therefore, that The Federal Land Bank of Columbia be and it is hereby dismissed as a party defendant to this action, and that the said defendant recover its costs incurred in this action to be taxed by the Clerk." There is no exception and assignment of error in the record to this judgment.

3. The contest narrows itself down to a controversy between the defendants J. H. Rehder and J. H. Wallace. The defendant J. H. Wallace is uneducated, practically illiterate, and can read and write but little, and is able to do but little more than write his own name.

The defendant Wallace offered in evidence, unobjected to, the following exhibits: "Exhibit A: 'This is to certify that I will buy the 26-acre farm, formerly the Nelson Young farm at Rose Hill, for the sum of $2,000.00, and agree to pay $100.00 by Nov. 1, 1933, and $100.00 by June 1, and $150.00 by Nov. 1, 1934, and the balance per year same as in 1934 until the full amount is paid. I also agree to pay six per cent per annum on balance each year. If I fail to make these payments same is null and void. J. H. Wallace.' This is the paper Mr. Rehder prepared and handed to me. I saw him write it and he handed it to me: Exhibit B: 'This is to certify that I will buy the 26-acre farm, formerly the Nelson Young farm at Rose Hill, for the sum of $2,000.00, and agree to pay $100.00 by Nov. 1, 1933, and $100.00 by ...