Wilkins v. Hogue

• Decision Date: 31 August 1856
• Citation: 2 Jones 479,55 N.C. 479
• Court: North Carolina Supreme Court
• Parties: SARAH WILKINS AND ANOTHER v. THOMAS F. HOGUE AND ANOTHER, ADM'RS.

2 Jones Eq. 479

55 N.C. 479

SARAH WILKINS AND ANOTHER

v.THOMAS F. HOGUE AND ANOTHER, ADM'RS.

Supreme Court of North Carolina.

August Term, 1856.

Where the buyer of a tract of land has a full and complete remedy on a covenant of quiet enjoyment contained in the deed he has received, he cannot sustain a bill in a Court of Equity to enjoin the collection of the purchase-money, for a deficiency in the title to the land.

APPEAL from an interlocutory order of the Court of Equity of Cleaveland County, Judge BAILEY presiding.

The plaintiff Sarah purchased a tract of land from the defendants' intestate, David Hamrick, which is described by metes and bounds, particularly set out; and the quantity is stated in said deed at one hundred and fifty acres; the price of which was five hundred and twenty-five dollars; of which sum one hundred and twenty-five dollars was paid at the conclusion of the bargain; and, for the remainder of the purchase-money, $400, she executed her bond, with C. P. Wilkins as her surety, payable one day after date; of which she paid the further sum of $240. The deed executed by defendants' intestate contained the usual covenant of quiet enjoyment.

The plaintiffs, in their bill, allege that the boundaries, as set forth, include only one hundred and forty acres, and of this quantity, thirty-six acres are covered by an older and better title, under a grant issued to Logan Weir, and now owned by one George Martin; that the said thirty-six acres are of excellent quality, and formed her chief inducement to make the trade, the rest of the land being considerably worn, and much of it old fields. She alleges, that at the time she took the deed from the defendants' intestate, and at the time she paid the several sums mentioned, she was entirely ignorant of this deficiency in the quantity; and that having discovered it, she has refused to take possession of the land, and offered to reconvey to the defendants. The bill further alleges that suit has been brought, for the remainder of the bond, against her and her surety, in the Superior Court of Cleaveland, and that the defendants threaten to enforce, by execution, the collection of the amount due, when they shall have recovered their judgment.

The prayer of the bill is for an injunction to restrain the defendants from taking out execution upon their judgment at law, and that they shall discharge the same, and account to the plaintiff Sarah, for the value of the thirty-six acres;...