Wilson v. Vreeland

• Citation: 97 S.E. 427,176 N.C. 504
• Decision Date: 27 November 1918
• Docket Number: 451.
• Parties: WILSON ET UX. v. VREELAND.
• Court: United States State Supreme Court of North Carolina

97 S.E. 427

176 N.C. 504

WILSON ET UX. v. VREELAND.

No. 451.

Supreme Court of North Carolina

November 27, 1918

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by Arthur Wilson and wife against Louis B. Vreeland. Judgment for defendant, and plaintiffs appeal. No error.

Where husband and wife, as joint signers of a note, secured it by trust deed on property of wife, husband, after death of wife being tenant by the curtesy, had right to buy at a sale by trustee.

The case shows that on December 31, 1910, W. M. Long, at their request, and for their accommodation, indorsed a joint note of Z. A. Dockery and his wife, Emma J. Dockery, due and payable at the Charlotte National Bank 12 months after its date, and they executed a deed of trust to secure and save harmless the indorser on land belonging to the wife. Default having been made in the payment of the note, the trustee sold the land under the power contained in the deed, and Z. A. Dockery purchased it at the sale, and the trustee conveyed the land to him for a full and fair price, and without any fraud being alleged. Z A. Dockery's wife, Emma J. Dockery, died intestate after the execution of the deed of trust and before the sale leaving children by her marriage, so that, at the time of the sale, her husband, Z. A. Dockery, had become tenant by the curtesy of the land. The land passed by mesne conveyance to the defendant, who conveyed it with warranty to the plaintiff, who sues for a breach of the covenant, and prays in his complaint, that he recover the purchase price of the land ($630) and interest from the time he bought it from the defendant, which was on September 27, 1917.

The defendant demurred to the complaint, and the court sustained the demurrer and gave judgment for the defendant, with costs, holding that the title to the lot is vested in the plaintiff in fee simple, and that he has a good and indefeasible title thereto, and that the plaintiff in his complaint has not stated a good cause of action.

Plaintiff appealed from this judgment.

Thos. W. Alexander, of Charlotte, for appellants.

Louis B. Vreeland, of Charlotte, for appellee.

WALKER, J. (after stating the facts as above).

It appears, in this case, that the plaintiff is suing for a breach of the covenant of warranty in the deed of the defendant to him, without alleging an ouster or eviction by title paramount, which is necessary. On the contrary, he alleges that he is in peaceful possession of the land, and there is nothing to show that his possession has been disturbed. 11 Cyc. 1125, where it is said that, to constitute a breach of such a covenant, there must have been an eviction or equivalent disturbance by title paramount, and the title or right to which the covenantee yields must be not only paramount to his own, but paramount to that of any one else. Britton v. Ruffin, 123 N.C. 67, 31 S.E. 271; Wiggins v. Pender, 132 N.C. at page 640, 44 S.E 362, 61 L. R. A. 772. There is a covenant of seisin in the deed to plaintiff, a copy of which is annexed, and such a covenant is broken, if the title was not good, upon delivery of the deed. Britton v. Ruffin, supra. But we do not see why plaintiff was not seised under his deed. At the time that Z. A. Dockery bought at the trustee's sale, he was tenant by the curtesy, and therefore had a life estate in the land. The sale was not made by himself, but by the trustee, and he had the right to buy in order...