Saunderson v. Ballance

• Decision Date: 30 June 1856
• Citation: 47 Am.Dec. 218,2 Jones 322,55 N.C. 322
• Court: North Carolina Supreme Court
• Parties: ERASMUS H. SAUNDERSON v. CALEB BALLANCE.

2 Jones Eq. 322

55 N.C. 322

47 Am.Dec. 218

ERASMUS H. SAUNDERSON

v.CALEB BALLANCE.

Supreme Court of North Carolina.

June Term, 1856.

Where A, having an unregistered deed for half of a tract of land, stands by and sees the same sold at public auction by a trustee as the land of another, and permits B to buy it, and afterwards to pay the purchase money and take a deed for it from the trustee, under an impression that he was getting a good title for the whole; which impression is well known to A, and he does not disclose his title at such auction sale, nor say anything about it at that time, nor afterwards, before the money is paid; such concealment is a fraud upon B, and a Court of Equity will compel A to convey his moiety to B, upon the repayment of what he gave for such moiety.

CAUSE removed from the Court of Equity of Hyde County.

Thomas Ballance, now deceased, being greatly indebted to various persons, for the purpose of securing his creditors, made a deed in fee of his land in trust, to David Carter, dated 10th of May, 1853. Amongst other tracts of land he conveyed the one in question, lying near the town of Middleton, in Hyde County, known as the home plantation, containing about three hundred acres. This deed in trust was duly proved and registered, and by virtue of the power and authority therein contained, the said David Carter, as trustee, on the 15th of June, 1853, having made advertisement, exposed the lands embraced therein to public sale, to the highest bidder, on a credit of six months. The land in question was sold to the plaintiff, Saunderson, who became the last and highest bidder for the same, at $3,942, and gave bond and security for the purchase-money, according to the terms of the sale. At the maturity of the bond thus given, the plaintiff paid the purchase-money and took from the trustee a deed in fee simple for the same, without warranty; he, the trustee, believing that the title of the land was undoubtedly good.

Thomas Ballance had purchased the land in question from his father, one Caleb Ballance, and took a deed for the same, dated in the year 1821, which, for the want of words of inheritance, conveyed to the said Thomas only the life-estate of the grantor, Caleb. Thomas Ballance, however, immediately entered upon the land thus conveyed, and continued in the possession thereof up to the time of making the deed of trust above mentioned, claiming the same as his absolute property in fee.

Upon the death of Caleb, the grantor, the reversion of this land descended to his heirs-at-law, who were Thomas Ballance, Joshua Ballance, and a sister, who dying without issue, the whole reversion finally became the property of the said Thomas and Joshua.

On the 8th day of June, in the year 1853, a few days before the sale by the trustee, Joshua Ballance made a deed in fee for his half of the reversion of the land in controversy, to the defendant, Caleb Ballance, Jr., for the consideration of $25, which, it is admitted, was much less than the actual value thereof. Thomas Ballance, by permission of the plaintiff, remained in possession of the land, after the trustee's sale, until his death, which occurred in December following; and the defendant, who was living with the said Thomas, took the possession and still holds the same. When the plaintiff, in the month of January following, demanded the possession, from Caleb, he, for the first time, produced his deed from Joshua Ballance, and claimed one half of the land. This latter deed was not registered until after the death of Thomas Ballance.

The plaintiff alleges in his bill, that at the sale of the trustee above mentioned, while the land in question was being offered for sale, he enquired of the former owner, Thomas Ballance, in the presence and hearing of the defendant, Caleb, whether the title of the same was clear and indefeasible, and received for an answer, that it was; that the said Caleb made no claim to the land on this occasion, and said nothing about the deed which he now sets up; that he relied upon this assurance of the said Thomas, and fully believed that he was purchasing the entire estate in the land; and that although the defendant knew well that he was buying under this impression, he failed to make known his claim of title to the half, as now set up, until after the plaintiff had paid the purchase-money and taken his deed as aforesaid. The prayer of the bill is for a conveyance of the half of the land bought of Joshua Ballance, and for general relief.

The defendant, in his answer, admits that he was present when plaintiff bought the land, and admits that he gave him no notice of the deed which he held from Joshua Ballance, for one half of it, nor of any claim to it whatever, and excuses himself for this omission by the following statement: “This defendant says, that he had said deed at, and before, the sale by Carter, the trustee, but he did not feel bound at said sale to disclose his title; because he knew, that before the sale, the deed from Caleb Ballance, Sen'r., to Thomas Ballance, had been examined by the trustee; and the said trustee knew, or might have known, that the said deed conveyed only a life-estate; and because said trustee in offering said land for sale, carefully and distinctly stated that it was only the estate of Thomas Ballance, whatever that might be, which was sold; which this defendant thought was a sufficient caution to all purchasers to inquire for themselves. This defendant thinks it probable the plaintiff did not know the character of the deed from Caleb Ballance, Sen'r., to Thomas Ballance; but he might easily have known the same, as the said deed was duly registered in Hyde County, on the 11th day of January, 1821, and the sale by the said Carter had been advertised for several weeks before it took...