Abernathy v. . Stowe , 92 N.C. 213 ( 1885 )

Mérrimos, J.

(after stating the facts). "We think that the intimation of the Court-, that “under the facts as proved there were incumbrances existing on the property and the plaintiff could not recover,” was not wai’ranted by any proper view of the evidence produced on the trial.

The plaintiff introduced evidence that went directly to prove a good and perfect title, prima facie, in him to the laud mentioned and referred to in the bond sued upon, and, giving this bond a proper interpretation, nothing appeared to the contrary. The plaintiff sold the land to the defendant in the spring of 1879, and then put him in possession of it, and he continued to have such possession from that time, until and at the trial, the plaintiff, in the meantime, having conveyed the title to him by proper deed, on the 25th day of March, 1880, the day on which the bond sued upon was executed. This bond contained a condition, badly and obscurely expressed, but giving it a reasonable and just interpretation, it means that the defendant obliged himself to pay to the plaintiff $538.70 when, as soon as, and upon the condition, that the latter should relieve the land he had sold and conveyed to the former of “all claims, trespasses and incum-brances whatsoever, and when he gives me (the defendant) full possession to (of) said property, with all the rights, powers and privileges granted to the said G. W. Abernathy and A. Goodson by deed of conveyance from John Clemmer for tract of land of which the tract the said G. W. Abernathy sold me (the defendant) is a pai't.” That is, the money was to be paid to the plaintiff as soon as he made to the defendant a clean title to the land, including “all the rights, powers and privileges” appertaining thereto, granted by John Clenmier to the persons named in the bond. If there were claims or incumbrances upon the land, or persons trespassing upon it at the time of the execution of the bond, the plaintiff was required to relieve the laud from them, and to the end that this might the more certainly be done, it was stipulated in the bond, that the defendant might apply the money agreed to be paid, or so much thereof as might be necessary, in the removal of any “incumbrances/’ and it was further stipulated, that the defendant would pay of the sum stipulated, $85, in October next after the execution of the bond, to pay “legal expenses.”

It seems that the parties apprehended that there were “ claims, trespasses or incumbrances” upon the land, but obviously if there were none, and the title to the land was good, including the rights and privileges appertaining thereto, then the plaintiff would be entitled to be paid the money the defendant had obliged himself to pay as part of the purchase money for the land.

The claims and incumbrances upon the land to be removed by the plaintiff1 were such as at the time the bond was executed had some foundation in right, or at least color of right, such as would require in some proper way an expenditure of money to remove them; they were not such as might be set up arbitrarily and groundlessly by a mere pretender. And the “trespasses” to be “removed” must imply such as intruders were perpetrating upon the land at the time the bond was executed, and as they continuously perpetrated until they were compelled to desist.

This seems to us a reasonable and just interpretation of the provisions of the bond just referred to, and the parties to it must be deemed to have so understood and accepted them.

The deeds put in evidence by the plaintiff on the trial, were not in any respect questioned, and the parol evidence introduced by him, if accepted as true by the jury, would have proven that the plaintiff had a good title to the land, including the rights and privileges conveyed by John Clemmer, and which he conveyed to G. W. Abernathy and A. Goodson; that he conveyed a good title to the same to the defendant, and that there were no “claims, trespasses or incumbrances” on the land at the time the bond was executed; unless “a hedge” temporarily put into the open fore-bay by Lineberger & Co., could be treated as a “trespass” to be removed, and as to that, the plaintiff offered before the action was begun to remove it, but the defendant would not allow him to do so, thus relieving him from further obliga tion in that respect, certainly, to the extent of putting such “trespass” out of the plaintiff's way to a recovery in this action.

The deeds put in evidence by the defendant failed to show the title to the land out of the platntiff at the time he conveyed it to the defendant; nor did they show any reasonable claim to, or incumbrance upon it; nor can we discover any claim to, or incum-brance on it made apparent by the transcript of the record in the action of W. A. Stowe v. The Woodlawn Manufacturing Co. and others.

These deeds were of recent date, junior by a great number of years to those introduced by the plaintiff and under which he derived title to the land, and there was no evidence going to show that any person ever had possession of the land sold by the plaintiff to the defendant claiming under them, or that any person set up any claim to this land until the bringing of the action by W. A. Stowe on the 5th of December, 1881, many months after the date of the bond, and the date of the deed by which the plaintiff conveyed the land to the defendant.

For the purpose of the appeal, it must be taken that the jury would have accepted the evidence on the part of the plaintiff as true, and so talcing it, he proved a prima facie case on his part. It thus behooved the defendant, if he could, to disprove it, by showing some defect in the title conveyed to him by the plaintiff, or by showing that a third person had a reasonable claim to, or incumbrance upon the land, or that a “trespass” had been committed at the time the bond was executed that the plaintiff had failed to remove, or, he might have shown that he had expended the money agreed to be paid, or a part of it, in removing incum-brances, such as we have indicated. This he did not do on the trial. It was not difficult for him to show that some person pretended to have and assert a claim to the land, or an incum-brance upon it, at the date of the bond, manifestly unfounded. This might be done every day and indefinitely. The plaintiff did not agree to remove such claims and incumbrances. Talcing the evidence produced on the tidal by the defendant to be true, the “claims, trespass or incumbrances” upon the land suggested by it were groundless and trifling, and not such as could seriously disturb the defendant’s title to it, or his full and free enjoyment of all the rights and privileges the plaintiff undertook to convoy to him. It may be that on another trial the defendant can establish a good defence to the action; we simply decide, that he did not do so on the trial had.

There is error, because of which, the judgment of non-suit must be set aside and a new trial granted.

To this end let this opinion be certified to the Superior Court of the county of Gaston. It is so ordered.