Shakespeare v. Caldwell Land & Lumber Co.
| Decision Date | 07 May 1907 |
| Citation | 57 S.E. 213,144 N.C. 516 |
| Parties | SHAKESPEARE v. CALDWELL LAND & LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Caldwell County; Guion, Judge.
Action by G. O. Shakespeare against the Caldwell Land & Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed, and a new trial granted.
A land company having executed an option contract to plaintiff for the sale of land, thereafter a deed was executed according to the option, but by mutual mistake certain land was omitted. Plaintiff mortgaged to the land company all the lands conveyed to him and thereafter conveyed all the lands to another, but neither the mortgage nor deed included the land omitted in the deed to plaintiff. Thereafter the land company commenced foreclosure against plaintiff and his grantee, and no answer having been filed by either, an agreement was entered into between the land company and plaintiff's grantee, by which the land company took a conveyance of the land, paying plaintiff's grantee a certain sum, and judgment was rendered that, all matters of difference between the parties having been adjusted, the action be dismissed. Held, that the judgment did not estop plaintiff from maintaining an action for the specific performance of the option contract as to the omitted lands.
This is an action for the specific performance of a contract to convey certain lands, described in the complaint. Upon the pleadings, admissions, and records in evidence his honor found the following facts and conclusions of law:
On the 21st day of August, 1901, the Caldwell Company executed an option contract to plaintiff, Shakespeare, wherein it contracted and agreed upon the performance by Shakespeare of each and every condition precedent therein named, to sell and convey to said Shakespeare the 86 tracts of land particularly described therein, "and together with any other lands in Caldwell county, N. C., in which the said Caldwell Land and Lumber Company has any interest, legal or equitable, whether said lands stand in the name of that company or in the name of any other person as trustee for or representative of that company." The Caldwell Company, under said contract, on the 13th day of February, 1902, conveyed to plaintiff the 86 tracts of land mentioned in the contract, some equitable interests it then had in the county, the stock of the railroad company, but did not convey the Williams lands which then stood in the name of J. M. Bernhardt as trustee for the Caldwell Company. Shakespeare, in order to secure the balance of the purchase money, reconveyed the lands that had been conveyed to him, in mortgage also executed by his wife to the defendant, Caldwell Company; but this mortgage did not include the lands in controversy. In April, 1902, Shakespeare conveyed to the Penncardan Company the lands that had been conveyed to him, subject to the mortgage he had hitherto executed to the Caldwell Company. This conveyance did not include the lands called the "Williams lands." On the 10th of November, 1903, Caldwell Company instituted an action in the superior court of Caldwell county against plaintiff and his wife, Penncardan Company, and railroad company, the purpose whereof was the foreclosure of the mortgage that had been executed by plaintiff, Shakespeare, to secure the balance of the purchase money for said lands therein described and the capital stock of railroad company. The complaint in that action does not describe the lands in controversy. No answer was filed by the defendants, or any of them. The time therefor was enlarged by consent until April 30, 1904, "without prejudice." On April 5, 1904 the Penncardan Company and Caldwell Company entered into an agreement for the compromise of said action, in which said agreement it is recited: "Whereas, the Caldwell Land and Lumber Company has brought suit for foreclosure upon a mortgage covering the real estate of the Penncardan Lumber and Manufacturing Company in Caldwell county, North Carolina, and the capital stock of the Caldwell and Northern Railroad Company; and, whereas, all parties to said suit have agreed to settle the same by the Caldwell Land and Lumber Company taking a conveyance from the Penncardan Lumber and Manufacturing Company of the real estate, mills, machinery, plant, and other property covered by the mortgage upon which foreclosure proceedings have been begun, and also of the capital stock of the Caldwell and Northern Railroad Company," the Caldwell Company agreeing to pay the Penncardan Company as a consideration therefor the sum of $15,000. Whereupon the parties to said agreement "covenant to and with each other as follows: First, that the foreclosure proceedings and the collateral poceedings thereunder shall be marked discontinued by the Caldwell Land and Lumber Company." Plaintiff was not a party to this agreement. On April 12, 1904, a judgment was filed in the clerk's office of Caldwell county, rendered upon the foregoing agreement: "That it being made to appear to the satisfaction of the court that all matters of difference between the parties to the said cause have been adjusted and compromised, it is now on motion of plaintiff, the defendants all consenting thereto, ordered that the orders entered in said cause appointing a receiver, etc., are hereby vacated and dissolved, and by like consent of all of said parties it is further ordered, adjudged, and decreed that the said above action be and the same is hereby discontinued and dismissed." The parties went to trial upon the record of the present and former suits, and the court found the facts from said records. To the finding of facts there is no exception, only to the conclusions of law of the court upon such findings.
The findings of the court below are: That the Caldwell Company did contract to sell and convey to plaintiff all lands and interests in lands owned by it in Caldwell county; that under said contract said company did not convey all lands owned by it at the date of said contract; that the lands in controversy belonged to said defendant at the date of said contract, and that said lands are now the property of said company; that the said lands were omitted from the deed to plaintiff from defendant by mutual mistake; that plaintiff mortgaged to the Caldwell Company all the lands conveyed to him other than the lands in controversy; that said mortgage did not include the lands in controversy; that plaintiff conveyed to the Penncardan Company all the lands that had been conveyed to plaintiff; that Caldwell Company instituted an action in the superior court of Caldwell county against plaintiff and the Penncardan Company for the foreclosure of said mortgage, and that the final judgment was as set forth in defendant's answer; that plaintiff is estopped by the said proceeding and the admission of the judgment in this action to maintain this action; that, being so estopped plaintiff, therefore, is not entitled to specific performance. The plaintiff admitted the rendition of the judgment pleaded, and the court, upon an inspection of the record, was of the opinion that the plaintiff in this action could have and should have set up his cause of action in this suit as matter of defense in said former action. The plaintiff excepted to his honor's conclusions of law, based upon the findings of fact, for that: (1) That plaintiff was estopped by the judgment of April 12, 1904, to assert any claim to...
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