May v. Getty
| Decision Date | 15 December 1905 |
| Citation | 53 S.E. 75,140 N.C. 310 |
| Parties | MAY et ux. v. GETTY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Macon County; Shaw, Judge.
Suit by S. J. May and another against R. P. Getty and others. From a decree in favor of complainants, defendants appeal. Affirmed.
The interest of a vendee of real estate who had paid certain earnest money under a contract of sale is not subject to levy and sale on execution.
This action was brought to compel specific performance of a contract to convey land, made November 23, 1896, between the plaintiffs, S. J. May and wife, and the defendant R. P Getty. The defendants resist the enforcement of the defendants' equity, upon the ground that they are not the owners of the title they contracted to convey. It appears that on June 22, 1889, the plaintiffs, by an instrument having in some respects the form of a deed, covenanted for the consideration of $2,350 to convey to H. V. Maxwell "all their right, title, and interest in and to the mineral interests in certain land in Macon county on Partridge creek known as the 'Forrester Gold Mine,' and consisting of three several tracts." This is the land in controversy. They further agree in said instrument "to make to H. V. Maxwell, or his assigns, a good and sufficient deed with warranty," to all their mineral interests in the said tracts of land. On November 23, 1896 the plaintiffs contracted to convey with covenant of warranty to the defendant R. P. Getty, for the consideration of $6,000, the land above described. The plaintiffs allege that the purchase money so agreed to be paid has not been paid in full, and they demand judgment for the balance due, $4,400 and for a sale of the land. The defendants aver that, at the date of said contract, and at the date of the contract with Maxwell, the plaintiffs did not have a good title to the land, as H. V. Maxwell and J. M. Forrester had interests in the 50-acre tract, Maxwell an interest in the 61-acre tract, and Forrester the entire interest in the 10 1/2-acre tract, and that the title was further incumbered and complicated by the outstanding contract of the plaintiffs with Maxwell for the sale of their interest to him, which contract has already been set forth. It further appears that Forrester duly contracted to sell his interests to the plaintiff S. J. May for $1,070. Sundry payments were made by the defendant Getty on the purchase money due by him upon his contract with S. J. May, leaving a balance due of $4,889.76, and also by the plaintiff S. J. May on the purchase money due by him upon his contract with Forrester, leaving a balance due of $1,313.25. H. V. Maxwell, on March 5, 1896, for the consideration of $1, transferred all his right, title and interest in the land to H. P. Wyman by an instrument in the form of a deed, but not having any seal, and Wyman conveyed all the right, title, and interest thus acquired, to the defendant R. D. Woodward, by deed dated January 17, 1900, for the consideration of $150. On August 25, 1893, the plaintiff S. J. May brought suit against Maxwell for the sum of $2,350 balance due on the contract for the sale of the mining property above mentioned, and caused an attachment to be issued and publication to be made. Maxwell being then a nonresident, the said attachment was levied on the property described in the contract between May and Maxwell and also on the other real estate belonging to Maxwell, including all interest he had in the property in controversy outside of that mentioned in the said contract. The plaintiff May recovered judgment, which recites the issuing of the attachment and the levy of it on the said lands and interests by the sheriff "as appears by his return." A general execution issued upon this judgment in which there was no reference to the attachment. After referring to the judgment roll, it required the sheriff, if sufficient personal property could not be found, to satisfy the said judgment out of any real property of the defendant in his county "in whose hands soever the same may be." The description of the property, in the return of the sheriff upon the execution, corresponds with that found in his return upon the warrant of attachment. At the sheriff's sale, August 6, 1894, the property was purchased by the plaintiff Sarah J. May, and a deed was made to her by the sheriff, August 13, 1894.
The referee found as facts that Maxwell never tendered or paid May any money, other than $100 paid on the date of the contract, and never demanded the deed for the land. Two years after the execution of the contract with May, Maxwell left this state, and has never since exercised any ownership over this property or had possession of the same. Thereupon May entered upon the said property and held possession thereof until the date of the Getty contract (either for himself or by authority of his wife). Maxwell has not since been a resident of this state; that S. J. May, acting under authority from his wife, took possession of the property shortly after the execution of the deed from the sheriff to Sarah J. May, and did certain work tending to develop the property and at intervals took ore therefrom, and did other work or repairs when necessary to keep the property in shape until the date of the contract to R. P. Getty, at which time said Getty took possession and spent about $6,000 in developing the mine, improving it, putting up buildings, and taking out between 1,500 and 2,000 tons of ore. In this connection it is well to state that the court found, as additional facts, that 12 or 13 years prior to the date of the judgment (Spring term, 1905), The court then held upon this finding that Maxwell abandoned the said contract, and relinquished all his rights and equities thereunder at that time. The court also held that the sale and sheriff's deed under the attachment and judgment in the case of May v. Maxwell passed to the plaintiff Sarah J. May all of the property and interest of Maxwell, which were sold by the sheriff, except such interest or equity as he acquired by virtue of the contract between him and the plaintiff S. J. May. The case was referred, and the referee reported the facts and his conclusions of law. From his report and the findings of the judge, we have taken the foregoing statement of facts.
Numerous exceptions were filed to the report of the referee. The court passed upon the exceptions and finally adjudged that there was due by the defendant Getty upon his contract with the plaintiffs the sum of $4,889.76, and interest, and that the plaintiffs owed Forrester on his contract the sum of $1,313.25, and interest. It was thereupon adjudged that if the defendant Getty failed to pay the sum due by him within the time fixed in the judgment, the commissioners appointed for the purpose should sell the lands described in the contract between the plaintiff S. J. May and R. P. Getty, and report the sale to the court at its next term, and a similar direction was given as to the land described in the contract between the plaintiff S. J. May and J. M. Forrester, in case the said plaintiff failed to pay the amount found to be due to Forrester. It was further adjudged that if the money due by Getty to the plaintiff S. J. May, and the interest thereon should be paid by Getty, a deed should be executed by the proper parties to Getty for the lands described in both contracts, and that out of the money so paid the sum of $1,313.25, and interest should be paid into the clerk's office for the use of the heirs of Forrester, he having died; this being required, as we assume for the exoneration of the Forrester lands from the lien for the balance of the purchase money due under the contract between the plaintiff S. J. May and Forrester, the said amount being properly chargeable against the plaintiffs in the general settlement and adjustment of the equities, as between the several parties, and this being a short way of relieving the Forrester land of its burden. At any rate, there was no exception to this provision of the judgment, nor was there any to its form in any particular, the defendants excepting to it only upon the ground that the court erred in adjudging any amount to be due by the defendant Getty, and that it should have adjudged that the plaintiffs were indebted to Getty in the sum of $9,330.14, with interest. Defendants appealed.
E. B. Norvell and Jones & Johnston, for appellants.
Horn & Mann, for appellees.
WALKER, J. (after stating the case).
We agree with the learned counsel of the defendants that the vital questions in this case are those raised by their seventh and eighth exceptions to the referee's conclusions of law and the ruling of the court thereon. Indeed we think that a decision upon the matters thus presented will be sufficient to dispose of the appeal, as the other exceptions are subsidiary to those two, and, if there are any not thus strictly related to them, they are not essential elements in the case, and the rulings upon them even if incorrect, and we do not think they were, cannot be assigned as reversible error. There are three questions which we will consider in the following order: (1) Did Maxwell agree with May to rescind, and thereupon abandon the contract of sale? (2) Were the proceedings in the suit of...
To continue reading
Request your trial