Smith v. Brittain

• Decision Date: 31 December 1844
• Citation: 42 Am.Dec. 175,3 Ired.Eq. 347,38 N.C. 347
• Court: North Carolina Supreme Court
• Parties: JAMES M. SMITH v. PHILIP BRITTAIN et al.

3 Ired.Eq. 347

38 N.C. 347

42 Am.Dec. 175

JAMES M. SMITH

v.PHILIP BRITTAIN et al.

Supreme Court of North Carolina.

December Term, 1844.

A sale by a Clerk and Master, under a bill praying the sale of land for partition, is but a mode of sale by the parties themselves. It is not merely a sale by the law, in invito, of such interest as the parties have or may have, in which the rule is, caveat emptor; but professes to be a sale of a particular interest, stated in the pleadings to be vested in the parties, and to be disposed of for the purpose of partition only.

Hence, if a purchaser pays his money on a Master's sale, and discovers a defect in the title, at any time before a conveyance executed, he may recover it back.

When a sale under such a decree has been made to A., who pays a part of the purchase money, and then assigns his claim to B., who pays the remainder, and then a defect in the title is discovered, so that the assignee of the purchaser objects and cannot be held to take a conveyance-- Held, DANIEL, J. dissentiente, that this assignee was entitled, upon the Courts' rescinding the contract, to have the whole amount that had been paid refunded to him, both what was paid by his assignor, and what was paid by himself.

Held, further, that, the money having been paid into court in the original suit for a sale, he was entitled to his relief by a new bill against the plaintiffs in such original suit, and his assignor. But, if he adopts this course, instead of applying to the court by petition or motion in the original suit, he will not be entitled to recover his costs.

The cases of Markland v. Crump, 1 Dev. & Bat. 94. Winborn v. Gorrell, 3 Dev. Eq. 117, and King v. Lindsay, Id. 77, cited and approved. The case of Williams v. Beeman, 2 Dev. 483, cited and commented on.

Cause removed to this Court for hearing, from the Court of Equity of Buncombe County, at the Fall Term, 1843.

The following was the case, as exhibited by the pleadings and exhibits:

David Myers, late of the State of South Carolina, being seized in fee of certain lands, situated in Buncombe County, in this State, by his will, dated the 6th day of June, 1833, devised the same, with the residue of his estate, to his six children, “Mary Clendenning, Clayborn Myers, Elizabeth O'Hanlon, David Myers, Nancy Myers and Robert Myers, for life only, and after their decease to their children respectively, that shall attain the age of 21 years; that is to say, to each of my said children one equal part of my estate (after the payment of my debts and legacies,) for life, and after decease of any one of them, to his or her children then living, that may attain 21 years, the income to be applied to their education and maintenance during their minority, but the principal and the accumulation during their minority, to survive to such as may attain 21, and to vest in such, whether one or more, at the age of 21, absolutely and forever.” The will then creates cross-remainders between all the children and their issue, upon the death of any of the children without leaving issue, or upon the death of their issue respectively, before attaining 21; providing, finally, that “in case my six children, Mary, &c. should all die without leaving issue, that shall attain the age of 21 years, as before mentioned, then, and in that case, I give all the rest and residue of my estate to my cousin, Henry Myers, his heirs and executors forever.”

The testator died, and his will was duly proved in South Carolina, and in September, 1837, David Myers, the son, filed his bill in the Court of Equity for Buncombe county, against his brothers and sisters, the other devisees with him, and therein stated, that David Myers, the father, was seized of the said land in fee simple, and that, by his will, duly executed to pass land in this State, he devised the same in fee simple to the said David, and to his said brothers and sisters, the parties in the cause, equally to be divided between them as tenants in common. The bill purported to have annexed to it, as an exhibit, a copy of the said will, certified from the proper courts in South Carolina, where it alleged the original to have been duly proved and to remain. The bill then stated, that the actual partition could not be made of the said land in Buncombe without injury to all the owners, and prayed, therefore, that the same might be sold by a decree of the court, and the money divided between the persons entitled, according to the statute.

The defendants did not answer the bill, but suffered it to be taken pro confesso; and such proceedings were had in the suit, that in September, 1838, a decree was entered, purporting to be made by the court on a hearing upon the bill, exhibits, and former orders, and decreeing that the land should be sold, as prayed for in the bill, and appointing the Clerk and Master to make the sale to the highest bidder, upon a credit of one and two years, taking bonds from the purchaser with sufficient sureties.

On the 12th of February, 1839, the master made a sale to the defendant, Philip Brittain, for the sum of $5,656 00, which was duly secured, and he gave Brittain a written certificate, stating the sale and the terms thereof, and he also reported the same to March Term, 1839, and the report was confirmed, and Brittain went into possession of the land.

In fact, however, a copy of the will was not exhibited with the bill, nor given in evidence on the hearing, nor filed in the cause, until January or February, 1840.

The master being ordered to collect the purchase money, he received from Brittain the sum of $1,250, in April, 1840, and took judgment for the residue; and Brittain, being unable to pay it conveniently, without selling the land, agreed for the sale thereof to James M. Smith, on the 28th of February, 1842, at the price of $3,800, ready money, which was to be, and was, immediately applied towards the payment of the debt, and then Brittain discharged the residue. The contract between Brittain and Smith was written on the certificate, which had been given by the master to Brittain, and states, that, in consideration of the sum of $3,800, paid to Brittain, he had bargained and sold to said Smith “the lands within named, and doth hereby transfer and assign to said Smith all my interest and right in and under this certificate, and authorise and request the Honorable Court of Equity to make a title to the premises to the said Smith in my stead.”

At March term, 1842, the master reported that the purchase money was fully paid to him. And it was thereupon ordered, that the master should execute a deed to James M. Smith, “the assignee of Philip Brittain, the original purchaser.” And it was further ordered that the master should retain the purchase money, and let it out on loans bearing interest, until the further order of the court.

In May, 1842, James M. Smith filed his bill against all the parties to the above mentioned suit, and against Brittian, and therein states all those matters, and that Brittian, when he purchased, and when he sold to Smith, and also, that Smith, when he purchased and obtained the order, that the deed should be made to him, fully believed, that the parties to the original suit were seized in fee as in the bill stated; and that he knew nothing to the contrary until within a few days before the filing of his bill, when he discovered the contents of the said will, and was advised that he could not get a good title under the decree. The bill charges that the statement of the title in the original suit, and keeping back the will from the court, and procuring and suffering the decree without defence, were fraudulent, and with a design to impose on the court, and deceive purchasers. The prayer is, that the decrees in the original cause may be reversed, and the sale declared void, and the purchase money aforesaid, and the interest thereon, be paid to the plaintiff.

Upon the filing of this bill, the court ordered, in the original cause, that the master should lease the land from year to year pending this suit, and bring the rent into court.

Brittain, by his answer, submits, that Smith should have the money paid by him, Smith; but, he says, that, at the time of his sale to Smith, he was ignorant of any equity to rescind his contract of purchase upon the ground of a defect of title, but believed the title to be good, and the contract obligatory, and that, under that belief, he sold the land for less than he gave, from necessity; and, upon those grounds, he claims for himself such parts of the purchase money, as he paid out of his own funds, over and above the rum of $3,800, received from Smith.

All the Myers family, except two, suffered the bill to be taken pro confesso; and those two answered and denied their belief of any fraud intended in the original suit. They state, that real estate in South Carolina had been sold by a decree of the Court of Equity, in the same manner, as prayed in the bill here, and that they were advised that a good title could be made.

They state, further, that the land had fallen much in value since the sale to Brittain, and that they believe that is the plaintiff's motive for wishing to get clear of the bargain, and that they had offered him to refund to him the sum of $3,800, which he paid, and take the bargain in his stead, or to execute to him a covenant with the most ample security to indemnify him against any disturbance, and also to complete the title.

To the answers, replication was taken; and the cause was set down for hearing upon the foregoing orders, and the record of the original suit, and the orders therein, and a copy of the will of David Myers, as exhibits, and an admission of the truth of all the allegations in the bill, except those especially denied, and then it was transferred to the Supreme Court for a hearing.

Badger for the plaintiff .

J. H. Bryan and Iredell for the defendant Brittain .

RUFFIN, C. J.

A sale by the master in a case of...