Patterson v. Bryant

• Decision Date: 13 December 1939
• Docket Number: 595.
• Citation: 5 S.E.2d 849,216 N.C. 550
• Parties: PATTERSON v. BRYANT et al.
• Court: North Carolina Supreme Court

5 S.E.2d 849

216 N.C. 550

PATTERSON v. BRYANT et al.

No. 595.

Supreme Court of North Carolina

December 13, 1939

The plaintiff complained, and the evidence tended to show, that the defendant conveyed to him the timber located on a certain tract of land in Pender County, described in the complaint and received the purchase price therefor. The plaintiff did not immediately cause his deed to be registered. Meantime the defendant, for a valuable consideration, included the same timber in a deed made to other parties, who promptly registered their deed. The last mentioned deed was recorded on September 7, 1937; ten days later the plaintiff's deed was recorded. The time given the plaintiff to cut the timber had not expired.

In the course of the trial a judgment of nonsuit was entered as to the grantees under the deed last executed, from which order the plaintiff did not appeal, and the suit proceeded against Bryant.

In the evidence supporting the contentions of the plaintiff it was developed that the defendant at the time of the execution of the second deed hesitated about making it, recalled and spoke of the transaction he had had with the plaintiff about the timber, and raised some question as to whether the deed made to the plaintiff ought to have included certain timber which he was then about to convey under the second deed, and appealed to the recollection of persons standing by to verify his impression of the transaction theretofore made with Patterson.

In his answer to the complaint the defendant Bryant alleged that he had been defrauded by the plaintiff in the inclusion in the first deed to plaintiff of the timber in dispute, and in his testimony reviewed the transaction with Patterson leading to the execution of the deed, claimed that he had been deceived as to the conditions on the land as being unfavorable to the cutting of the timber, and as to the quantity of timber in the swamp, and claimed that he only intended to give the plaintiff the right to cut not exceeding fifteen trees upon the area afterward included in the deed made to Grimes Worthy, and others. He claimed that at the time of the execution of the deed to Patterson he was sick in bed and signed the deed only at the insistence of Patterson.

In apt time the defendant moved for judgment as of nonsuit, both at the conclusion of the plaintiff's evidence and at the conclusion of all the evidence, which motion was declined.

Upon the issues submitted to the jury a judgment was entered awarding $350 damages to the plaintiff in compensation for the injuries done him through the alleged wrongful acts of the defendant, from which judgment defendant appealed, assigning errors.

John J. Best, of Burgaw, for defendant-appellant.

Hackler & Allen, of Wilmington, and C. E. McCullen, Jr., of Burgaw, for plaintiff-appellee.

SEAWELL Justice.

The only question argued by the defendant in this court relates to the refusal of the trial judge to allow his motion for judgment as of nonsuit made at the conclusion of the plaintiff's evidence and renewed at the conclusion of all the evidence.

Defendant's counsel contends that the motion for judgment as of nonsuit should have been allowed (1) because there was no allegation or evidence of the breach of any covenant in the deed from defendant to plaintiff; (2) that there was no allegation or evidence of any unjust enrichment of the defendant; and (3) that there was no allegation or evidence of fraud or guilty knowledge or intentional unfair dealings on the part of the defendant. It is further pointed out that the plaintiff was negligent or guilty of laches in recording his deed, and that his loss or injury, if any, was due to that cause.

The deed does not, in fact, contain any covenants or warranties but the rights of the plaintiff in this suit are not predicated upon a breach of any warranty in the deed, but upon a broader principle; the breach of duty which he conceives the defendant owed him of refraining from the deliberate selling of the land a second time, with the knowledge that he was jeopardizing the rights of plaintiff, and thus setting in motion a chain...