Ransom v. Shuler

• Decision Date: 31 August 1852
• Citation: 43 N.C. 304,8 Ired.Eq. 304
• Court: North Carolina Supreme Court
• Parties: D. F. RANSOM v. E. SHULER.

8 Ired.Eq. 304

43 N.C. 304

D. F. RANSOM

v.E. SHULER.

Supreme Court of North Carolina.

August Term, 1852.

A motion to dissolve an injunction, until the defendant has filed his answer is irregular: At all events, such a motion ought not to be entertained, after a general demurrer has been set down for argument and before the argument.

The rule in Equity is, that a vendor cannot, with a good conscience, coerce the payment of the whole purchase money, when there was fraud in the sale, and leave the vendee to pursue a personal action at law for the uncertain damages, which a jury might assess, for the fraud in selling what did not belong to the vendor, but, on the contrary, the vendee has the right of withholding so much of the purchase money, as will re-imburse him for his loss, because, to that extent, the consideration has failed in his own hands against the loss impending over him.

In such a case, the contract remaining unexecuted, the Statute of Limitations has no application.

Appeal from the Superior Court of Law of Cherokee County.

Gaither for the Plaintiff .

J. Baxter for the Defendant ,

RUFFIN, C. J.

The bill was filed on the 5th day of September, 1851, and states, that, at the public sales in 1838, the defendant purchased from the State two adjoining tracts of land in Cherokee County, containing together 265 acres, and that, before he had fully paid for them, he contracted on the 8th of January, 1848, with the plaintiff to sell them to him for the sum of $600, over and above the residue of the purchase money due to the State, and that the plaintiff paid the defendant the sum of $300 down and gave him his bond for the remaining sum of $300, and the defendant transferred to the plaintiff the survey and Commissioners' certificate, with authority to receive the grant from the State, upon payment by the plaintiff, of the remainder of the purchase money, the land being particularly described by miles and bound in the survey: That the defendant had cleared a field, containing about fifteen acres, and had erected thereon a dwelling house and made other improvements, and that the same were worth between two or three hundred dollars and that during the treaty, the defendant represented that the said houses and improvements were included in the survey and land, so purchased from the State, and the plaintiff made the purchase under the belief, that they were included, and would belong to him, accordingly, upon the conclusion of the bargain, the defendant removed and delivered the possession to the plaintiff, as well of the dwelling house and other improvements and the cleared field of fifteen acres, as of the other parts of the land, and the plaintiff entered into the whole, as one purchase. The bill further states, that the defendant knew, at the time of the treaty and sale, that his purchase from the State did not include that field and his improvements thereon, but that it still belonged to the State, and that his representations on that point were false and fraudulent, as the plaintiff afterwards discovered, and that he commenced an action at law in the Superior Court of Cherokee against the defendant for the deceit, but was unable to prosecute it successfully, by reason that the defendant...