Vaughn v. Fallin
| Decision Date | 12 April 1922 |
| Docket Number | 354. |
| Parties | VAUGHN v. FALLIN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; Long, Judge.
Action by J. M. Vaughn against W T. Fallin. From an order denying defendant's petition to remove the cause to another county, defendant appeals. Reversed, and case removed.
This is an action begun by plaintiff on the 5th day of July, 1921. The complaint was filed August 24, 1921. Plaintiff alleges that in the year 1920 the defendant owned a large tract of land in the county of Stokes; that during said year he divided up said land for sale and made blueprints thereof that on the 29th day of May, 1920, the defendant after due advertisement held an auction sale of said property, and at that time had the blueprints aforesaid showing to prospective purchasers the boundaries, and representing to them the number of acres in the subdivision of the land; that plaintiff was at the sale, and, relying upon the statements and representations and blueprints of the defendant, bid off tracts No. 1 and No. 3, as shown on the blueprints; that at the time of the sale some question arose of a disputed boundary at the northwest corner of lot No. 1; that the defendant stated to the plaintiff that there were 4 or 5 acres in the dispute and that they would allow 10 acres off for that dispute; that the original tract No. 1 contained 75 acres; that the land in dispute was a small block in the northwest corner of lot No. 1; that the defendant represented that the line had been definitely settled and that he could convey a clear title to the same, according to the blueprints, less the 10 acres; that the plaintiff purchased tracts No. 1 and No. 3 as a whole, and would not have purchased one without the other, and would not have purchased either tract except upon the representation made by the defendant; that the defendant well knew that his statements aforesaid were false and fraudulent, and were made with the purpose of deceiving the plaintiff, and did deceive the plaintiff; that immediately after the sale the plaintiff, not knowing that false representations had been made to him as to the title and number of acres contained in the land by the defendant, paid to the defendant $2,339.75, which was one-fourth of the total purchase price of both tracts of land less the 10 acres which were agreed to be taken off to cover the disputed land; that plaintiff relied upon the statements of the defendant as being true, and did not know that the representations made to him were false until about one year thereafter, when the defendant sent to the plaintiff a deed to said lands, which deed showed that it was short 29.6 acres, whereupon plaintiff refused said deed and refused to make further payments on said land; that the plaintiff was to pay one-fourth of the purchase price in cash, which he did as hereinbefore set out, on the 29th day of May, 1920, and was to pay the remainder in one, two, and three years from the date of sale; that plaintiff is entitled to have defendant refund to him the said sum, so paid by him, together with interest, and is further entitled to have the contract declared null and void and any and all notes or obligations which he may have executed to the defendant surrendered and canceled. The prayer to plaintiff's complaint is as follows:
"Wherefore plaintiff prays judgment against the defendant for the sum of $2,339.75, with interest on said sum at the rate of 6 per cent. from the 29th day of May, 1920, until paid, and to have said contract and any and all notes which plaintiff may have signed surrendered and declared null, void and canceled of record, and the cost of this action, and such other and further relief as the court may deem just and proper."
Defendant filed a petition for removal of the cause from Rockingham county to Stokes county, on September 1, 1921, before the time for answering expired. At the same time, defendant had notice served upon plaintiff attaching a copy of his petition notifying the plaintiff that the defendant would on the 21st day of November, 1921, at 11 o'clock a. m., before his honor, B. F. Long, judge, at the courthouse at Wentworth, N C., ask for an order removing the cause to the superior court of Stokes county, as requested in his petition. This notice was duly served on the 6th day of September, 1921. The defendant filed his answer to plaintiff's complaint denying all of plaintiff's allegations, and asking for affirmative relief, to wit, specific performance, and also foreclosure of plaintiff's right, title, and interest in the land by reason of his contract of purchase, to the end that from the proceeds of sale the indebtedness due by plaintiff to the defendant may be discharged, and the balance remaining paid to plaintiff. This answer was filed on September 17, 1921. The plaintiff filed his reply on November 23, 1921.
The cause came on to be heard at the November term of the superior court of Rockingham county, upon defendant's petition demanding the removal of the cause to the county of Stokes. Defendant's motion was denied, and to this ruling of the court the defendant excepted and appealed.
King, Sapp & King, of Greensboro, for appellant.
J. L. Roberts, of Madison, and McMichael, Johnson & McMichael, of Winston-Salem, for appellee.
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...an interest in land to be brought in the county where the land is situate. McIntosh, Vol. 1 § 779, pp. 416-17 (citing Vaughn v. Fallin, 183 N.C. 318, 111 S.E. 513 (1922)); Councill v. Bailey, 154 N.C. 54, 69 S.E. 760 (1910). McIntosh was attempting to explain that only where land is in anot......
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... ... by merely failing to pray for relief to which their alleged ... facts if established would entitle them. Vaughn v. Fallin, ... 183 N.C. 318, 111 S.E. 513; Wofford v. Hampton, 173 N.C. 686, ... 92 S.E. 612; Council v. Bailey, 154 N.C. 54, 69 S.E. 760 ... ...
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Causey v. Morris
... ... Bailey, 154 N.C. 54, ... 69 S.E. 760, nor is it an action for the rescission or ... cancellation of such contract, as was the case in Vaughn ... v. Fallin, 183 N.C. 318, 111 S.E. 513 ... It was ... held in Eames v. Armstrong, 136 N.C. 393, 48 S.E ... 769, that an ... ...
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