Clanton v. . Burges , 17 N.C. 13 ( 1831 )

The defendant, in his answer, admitted the principal charges in the bill, but alleged that the plaintiff was fully apprized of the nature of the title, and denied that he had ever represented himself as having full power to convey. Pending this suit, the defendant obtained from Alston and wife a deed conveying the land in fee simple to the plaintiff, to which the wife had been privately examined, and it was field in the cause for the use of the plaintiff. The defects of the title complained of consist in the want of a privy examination of Mrs. Alston to the deed to Burgess, so that it passed only the estate for life of her husband, and in the trust created by that deed in favor of Mrs. Alston, and to her separate use during her life, and after her death for her issue. Pending this suit, (15) Alston and wife have duly executed a deed to the plaintiff himself in fee, which has been filed in the cause by the defendant, for the use of the plaintiff. The bill does not charge any fraud on the part of the defendant. It alleges, indeed, that the plaintiff discovered, since he took the deed from Burges, the two defects above mentioned. But it is not charged that Burges concealed those facts, or that he knew the effect of them and did not communicate it to the plaintiff. On the contrary, the plaintiff exhibits the deed to him; and upon the face of it, there is an express reference to the deed of trust from Alston and wife. It might well be taken, then, that the plaintiff knew the state of the title. He would certainly be affected with notice in respect of the cestui que trust in that deed; for knowledge and the means of knowledge are the same, and the same fact which communicates knowledge for one purpose must be considered as doing it for all others. The case cited at the bar of Abbott v. Allen, 2 Johns, ch. 519, lays it down that a purchaser who has received a conveyance, and is in possession and not disturbed, will not be relieved on the mere ground of defect of title, where there was no fraud nor eviction, but must rely on his covenants. Much more must it be so when the very defects of title alleged were known to the party at the time he took his conveyance. The contrary would amount to this: that no obligatory contract can be made unless the vendor's title is perfect; and that any defect, secret or notorious — so notorious as to affect the price agreed on — should put it in the vendee's power to rescind, after receiving a conveyance with covenants against those defects. This would be annulling contracts fairly made, and subject the vendor to circumvention because he himself acted honestly. But this cause does not demand a decision of this point, as those defects have been since cured.

It is undoubtedly the law of this Court that the vendor may complete his title pending the suit, and at any time before the hearing. He is allowed to make good his contract and buy his peace. The last (16) deed from Alston and wife is an effectual conveyance of the fee to the plaintiff. Its validity cannot be impaired by an acknowledgment of the feme of the deed to Burges; for such acknowledgment does not relate back, and only makes it her deed from the time of her privy examination. The only possible hiatus, then, in the plaintiff's title is the trust in favor of the children, arising out of the estate of the husband as tenant by the curtesy, from the death of their mother until that of their father, if he should happen to be the survivor. Whether, if the contract rested in articles, the purchaser would be compelled upon a bill of the vendor to accept a conveyance, with even this small cloud over it, I will not say. Probably he would not. He would have a right, before he parted from his money, to ask a clear title. But so minute an outstanding interest, depending upon such a contingency, can never form ground for rescinding a contract, at the instance of a purchaser who is in possession under a conveyance executed, with full covenants for quiet possession, from a vendor not alleged to be in failing circumstances, who made, on the treaty, a full communication of his title. To grant the prayer of the bill would be to proclaim encouragement to dishonest dealing and an invitation to purchasers to expose latent defects in their vendor's title, instead of curing them by enjoyment.

In truth, however, even this trivial imperfection does not exist in the title. It is now complete. The deed of settlement from Alston to Burges was after marriage, and so voluntary, and void as against subsequent purchasers under Statute 27 Eliz. Of this there can be no doubt, whether the purchaser have notice or not of the previous voluntary conveyance. It is established by an uninterrupted series of cases from the passing of the statute until this time. And there can be as little doubt that the plaintiff must be regarded as the purchaser from Alston and wife, for the price paid to Burges is a consideration extending, under the circumstances, to them.

Smith v. Garland, 2 Mer., 123, and Pulvertoft v. Pulvertoft, 18 Ves., 93, were cited for the plaintiff, to show that though a voluntary deed be void, yet a purchaser could not be compelled to specific performance where the estate was encumbered with such a conveyance. That (17) only means that a man shall not be forced to take a lawsuit upon a bill of the vendor. But where he has already taken the title, the fetters which he has put on himself cannot be loosed by the court upon any such ground.

It has been objected that no notice can be taken of the deed now filed, because it is not within the pleadings. The title supplied pending the suit never is. It is, to be sure, the more regular way for one of the parties to ask a reference of the title and have it reported. But that is only for the ease of the court, which may act by itself, and is not obliged to ascertain any fact by way of inquiry, but may do so directly. There is no complexity in this title; and, therefore, Court has thought it proper to proceed without putting the parties to the expense and delay of an inquiry.

PER CURIAM. Bill dismissed.

Cited: Crawley v. Timberlake, 37 N.C. 467; Hughes v. McNider,90 N.C. 252; Freeman v. Eatman, 38 N.C. 85; Thigpen v. Pitt,54 N.C. 69; Love v. Camp, 41 N.C. 213; Leach v. Johnson,114 N.C. 88; Rainey v. Hines, 121 N.C. 320; Brooks v. Loughran,122 N.C. 671.