Pugh v. . Brittain , 17 N.C. 34 ( 1831 )

The defendant, in his answer, stated that upon examining the will of the testator he found the Briery Pocoson bequeathed by the testator to two of his sons; that from thence he inferred either that the purchase money therefor had been secured or paid; that soon after probate of the will he discovered that he had not assets to pay simple contract debts. He denied that he had persuaded the plaintiff to purchase at the sale of his testator's assets, but stated that at the sale the plaintiff informed him that the purchase money for the Briery Pocoson had not been paid, and asked him if he would set off his (the plaintiff's), bid for a quantity of corn against the debt due upon that purchase; that supposing the plaintiff had a bond for the amount, he, without making due inquiry, incautiously consented; that upon coming to a settlement with the plaintiff, and finding that he had no note or bond for his debt, the defendant refused to comply until he had taken counsel; that after taking advice, being very anxious scrupulously to fulfill his bargain, he agreed to allow the plaintiff the debt due him, but for his own indemnity (36) sold the term, as the property of his testator, intending, if it brought more than $2,400, to give the benefit of the purchase to his testator's estate, and if not, to charge himself with the sum of $2,400, and take the term on his own account; that at the sale thus proposed nothing was bid for the land; and thereupon the plaintiff and his brother conveyed to him, and thus the purchase was forced upon him against his will, and solely to enable him to comply with a hasty pledge given the plaintiff; that the Briery Pocoson was originally leased for a term of years by the Tuscarora Indians to Thomas Pugh, the grandfather of the plaintiff, and under whom he claimed, who conveyed 100 acres thereof to one Samuel Williams, by whom it was assigned to Samuel W. Johnston, who conveyed to Chamberland; that the boundaries set forth in the deed of the plaintiff and his brother were those described in the original lease to Thomas Pugh; that neither he nor his testator, and, as he believed, neither the plaintiff nor his brother, knew anything of the fact that Chamberland's land was included within the boundaries by which the plaintiff and his brother conveyed, as the lands were low and subject to inundation, and no survey of them had ever been made. He admitted an eviction by one Bartlett claiming under Chamberland, and the pendency of the action upon the covenant, and insisted that as the plaintiff sold, and he bought, by the title papers alone, and that the conveyance to him intended to set forth the boundaries of the original lease, there was no mistake in the contract; but he got, and the defendant sold, exactly what was intended. And further, that if the contract was in any way altered, it should be rescinded, and submitted to reconvey to the plaintiff, and account for the rents and profits, upon receiving his purchase money, with interest.

Replication was taken to the answer at Spring Term, 1828, and a survey of the land was then ordered. At Fall Term, 1828, the cause was "set for hearing on the bill and answer," with leave to take testimony, and the survey was then returned, from which it appeared that (37) within the boundaries of the plaintiff's deed to the defendant there were, without including the land belonging to Chamberland, 721 acres. No depositions were filed. A replication has been filed in this case to the defendant's answer; and the cause is put down for hearing upon the bill, answer, and survey. The case, can, therefore, be decided for the plaintiffs only upon the facts which the defendant admits, as responsive to the allegations of the bill. It is therefore important that those facts or admissions should be well understood.

His Honor then stated the substance of the answer as given above, and proceeded: It is, therefore, the opinion of the defendant that the plaintiff conveyed land to him which neither he nor his brother believed was included in the boundaries set forth in the deed, and which they both knew belonged to another person. The bill is filed to rectify the mistake.

But the defendant insists that as the parties were ignorant of the lines, and had not the means of ascertaining them by a survey, the vendors meant to sell, and he to purchase, all the lands described in the deed to the elder Pugh, grandfather of the plaintiffs; that he looked to the paper title only. If a person was purchasing another's interest in lands, in no respect located, there might be some ground for such a claim. But in this case the parties had a knowledge of the land sold, but not of its particular boundaries; for the defendant describes it as low, flat land, uncleared and covered with water in the winter. And neither party ever dreamed that Chamberland's land was part of it; for it seems that Bartlett, who claimed under Chamberland, was in actual possession of that land. (38)

The defendant certainly got a title for less land than the boundaries of the deed cover. But deducting the Chamberland tract, the deed conveys more land than 640 acres, the quantity it calls for.

PER CURIAM. Injunction perpetuated.

Cited: McKay v. Simpson, 41 N.C. 454; Day v. Day, 84 N.C. 409;Anderson v. Rainey, 100 N.C. 335; Warehouse Co. v. Ozment, 132 N.C. 849;Maxwell v. Bank, 175 N.C. 183.