Peacock v. Barnes
| Decision Date | 02 October 1906 |
| Citation | 55 S.E. 99,142 N.C. 215 |
| Parties | PEACOCK v. BARNES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wilson County; E. B. Jones, Judge.
Action by J. W. Peacock against Ida Barnes and others. From a judgment for plaintiff, defendants appeal. Reversed.
An owner died seised of several tracts of land incumbered by mortgages. The property was sold by order of the court, and the proceeds were applied to the satisfaction of the mortgages. The land was sold by the acre. There was a deficiency in the number of acres represented. Held that, as the purchaser's claim does not arise from discharge of a specific lien, he was not subrogated to the rights of the creditors, and could not maintain an action for the deficiency after an action in assumpsit was barred, though the mortgages were not barred.
There was evidence to show that Harriss Winstead, late of Wilson County, died seised and possessed of several tracts of land same being incumbered by liens and mortgages to secure an indebtedness of about $4,500. Under proceedings duly instituted a portion of this land was sold by order of court for the sum of $6,000, and the proceeds, to the extent required, was applied to payment and satisfaction of the liens and mortgages referred to, and a surplus, after paying costs and charges of administration, was turned over to two of the devisees under the will of the said Harriss Winstead. A portion of the land of the said Harriss Winstead was not sold, and the same is now opened and possessed by some of his devisees and heirs at law. At the sale referred to lot No. 5 was sold by the acre, and was represented by the commissioner to contain 416 acres, and the same was bought by plaintiff J. W. Peacock, for $11.10 per acre, and the purchase price at that rate, to-wit, $4,616.60, was paid to commissioner by said purchaser, and a deed of conveyance executed and delivered to him in which the said land was accurately described by metes and bounds. Afterwards, and more than three years from the delivery of this deed, plaintiff discovered there was a shortage of more than 96 acres in said tract, and about six months after such discovery plaintiff instituted this action against the legal and personal representatives of Harriss Winstead, deceased, and the commissioner who sold the land, seeking to recover for amount of this shortage at the purchase price per acre. The sale occurred in November, 1899, and was reported to the next term of the court, presumably in December, 1899. Plaintiff put in evidence deed from Peacock to Thos. Williams, bearing date January 16, 1903, with testimony to the effect that he did not discover this shortage till at or near the time of this sale; also the summons on this present action, bearing date January 17, 1903; also report of Dawes, commissioner, showing that he applied the purchase money receiving from plaintiff for lot No. 5 to the discharge of the mortgage indebtedness on that land. Defendant offered in evidence the deed from John D. Dawes, commissioner, to J. W. Peacock for this land accurately describing same by metes and bounds, and dated January 8, 1900. On the issue as to the statute of limitations, the court charged the jury that if plaintiff, J W. Peacock, did not discover the error in the acreage until January 10, 1903, the date of the deed to Thos. Williams, they should answer the issue "No." Defendant excepted. There was verdict for plaintiff to the amount claimed, and from judgment on verdict defendant excepted and appealed.
Connor & Connor, for appellants.
F. A. Woodard and Pou & Finch, for appellee.
HOKE J. (after stating the case).
On a former appeal in this cause (Peacock v. Barnes, 139 N.C. 196, 51 S.E. 926) we have held that the plaintiff had a good cause of action, and this appeal presents the question whether the cause of action is barred by the statute of limitations. The statute applicable bars an action of this character, actions for recovery on account of fraud or mistake in three years, and provides that the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting said fraud or mistake. The defendant contends that on the facts of this case the cause of action should be deemed to have accrued on the delivery of the deed; and for the reason that, as the deed contained an accurate description of the land by metes and bounds, the exact quantity could have been readily ascertained by a simple calculation. But we do not think this position can be sustained. There may be facts and attending circumstances from which the jury might fix this as the date when the statute begins to run; but we do not think it follows from the mere fact that the deed, on its face, contains an accurate description of the land by metes and bounds. In Stubbs v. Motz, 113 N.C. 458, 18 S.E. 387, the court has held that the limitation for actions of this class is three years from the date of the discovery, and not from the date of the mistake, and there are or may be any facts pertinent to this question of discovery, besides the description of the land appearing on the face of the deed.
Nor do we hold with plaintiff that the statute begins to run from the actual discovery of the mistake,...
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