Marks v. Mcleod

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, C. J
• Citation: Marks v. Mcleod, 203 N.C. 257, 165 S.E. 693 (N.C. 1932)
• Decision Date: 05 October 1932
• Docket Number: No. 121.,121.
• Parties: MARKS et al. v. McLEOD et al.

203 N.C. 257

165 S.E. 693

MARKS et al.

v.McLEOD et al.

No. 121.

Supreme Court of North Carolina.

Oct. 5, 1932.

Appeal from Superior Court, Lee County; Grady, Judge.

Action by R. E. Marks and G. O. Marks, trading as Marks Bros., against Kate S. McLeod and another. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Civil action to recover damages for alleged breach of contract.

On March 15, 1915, Alf. H. McLeod agreed to sell the plaintiffs all of the timber, measuring 10 inches at the butt, "located on my places in Lee County, known as the 'Old McLeod Place.'" Title to the property was at that time in Kate S. McLeod.

It is alleged that the "Old McLeod Place" consisted of two tracts of land, one containing 631 acres and the other 50 acres.

On March 20, 1915, Alf. H. McLeod and wife, Kate S. McLeod, executed a deed to the plaintiffs for the timber on the lands mentioned in the contract of sale, describing it by metes and bounds.

It is alleged that by inadvertence, fraud, or mistake, the 50-acre tract was omitted from the description in the deed.

It appeared upon the trial that the 50-acre tract was owned by Geo. B., A. H., and Alf. H. McLeod jointly at the date of the contract and deed and th;Tt Kate S. McLeod conveyed the timber thereon to D. J. Womack, after plaintiffs' grantee had been stopped from cutting the timber on said tract in July, 1917.

The defendant denied the allegation of inadvertence, fraud, or mistake, and pleaded the three-year statute of limitations.

This action was instituted by issuance of summons dated July 9, 1919.

From a judgment of nonsuit, the plaintiffs appeal.

K. R. Hoyle, of Sanford, for appellants.

John B. McLeod and Varser, Lawrence, McIntyre & Henry, all of Lumberton, for appellee.

STACY, C. J.

That Alf. H. McLeod was acting as agent of his wife in signing the contract of sale may be presumed from the subsequent ratification or execution of the deed undertaking to convey the timber in accordance with the prior agreement. Starkweather & Shepley v. Gravely, 187 N. C. 526, 122 S. E. 297. But it is doubted whether the evidence shows the 50-acre tract was intended to be included in the contract of sale. The description in the deed is by metes and bounds, and it is not included therein. Plaintiffs say they did not know of its omission from the deed until their grantee was stopped from cutting the timber in July, 1917.

Defendant says the 50-acre tract was never intended to be included in the contract or deed; that there was no mistake or fraud in the transaction; that the plaintiffs knew, or by the exercise of ordinary care should have discovered, upon...