Tomlinson v. . Savage , 41 N.C. 430 ( 1849 )

At Fall Term, 1830, of the Court of equity for Montgomery, Charles Savage, Samuel Savage, and Robert Lyde and Augusta, his wife, filed their bill ex parte, in which they allege that, as the heirs at law of their mother, Elizabeth Savage, the said Charles, Samuel, and Augusta were the owners, as tenants in common, of a plantation on Peedee River, containing 650 acres, and prayed for a decree of sale for the purpose of partition, and the sale was decreed accordingly. Pursuant thereto the clerk and master sold the plantation to the plaintiff for the price of $4,500, payable in three equal installments, and took three several (431) bond of $1,500, payable 1 January, 1831-2-3, with interest from 5 December, 1830, the day of sale. The plaintiff went into possession immediately after the sale, which was confirmed by the court, and has been in possession ever since. He paid the first bond, but after the second one fell due, he refused to pay, and filed the bill to rescind the contract, which bill was afterwards dismissed without prejudice. He then filed the present bill, by which he seeks to have the contract rescinded upon two grounds: because of a defect in the title as to all or some part of the land, and because Charles Savage, who, as he alleges, was aware of the defect in the title, "was himself the principal bidder in running said land up to $4,500 upon your orator."

A reference was made to the master to report upon the title, and he reported that a good title can be made. Exceptions are filed by the plaintiff. It will be convenient to consider them under two heads. First, in reference to the title of Johnson; and, second, in reference to the title of Elizabeth Savage, derived from Johnson. As to Johnson's title, the plantation contains two tracts: one of 300 acres on the river, which is mostly cleared and in cultivation; and the other of 350 acres, lying back in the hills and mostly woodland. The two tracts do not adjoin, being separated by a narrow strip of land, but they were sold together, and the one is necessary to the other for a supply of wood for fencing, fires, etc.

In 1785 a grant issued to Johnson for the 300-acre tract; but a grant had issued to one Hall in 1751, which covers the whole of this tract. In 1839 a grant issued to Johnson for the 350-acre tract; but a grant had issued to one Whitfield in 1783, which covers the larger part of this tract; and in 1783 a grant issued to one Colson which also covers 17 1/2 acres of this tract. The part covered by this grant is still in woods. Johnson, by his tenants, cultivated the 300-acre tract and got wood from the 350-acre tract until 1792, when he made a contract of sale to Mrs. Nesbitt, who resided upon the 300-acre tract and used the other tract for wood until 1793, when she married one Blinett, who lived upon the 300-acre tract, and used the other for wood until 1823. Mrs. Nesbitt paid for the land before her marriage with Blinett, but did not take a deed from Johnson, and died in 1796, having had a child born alive, but which died soon after its birth. Blinett, after her death, claimed as tenant by the curtesy, and, besides the possession above stated, he settled his daughter, Mrs. Lanier, upon the 350-acre tract, who cleared a field and lived on the land. The house was near the Salisbury Road, and both the house and field were upon that part of the tract which is covered by the Whitfield grant, but her possession did not extend to the part covered by the Colson grant. Mrs. Lanier continued upon (433) the place until her death in 1819, when the field was turned out, and no one had possession of this tract, except for the purpose of getting wood to support the plantation on the other tract, until the plaintiff took possession in January, 1831. Prior to 1823, Mrs. Savage, the mother of the defendants Charles, Augusta, and Samuel, and who was the only child of Mrs. Blinett by a former husband, one Nesbitt, had filed a bill against Johnson and Blinett, in which she alleged that her mother, who was her guardian, bought the land for her and paid for it with her money; and in 1823 a decree was entered, in pursuance to which Johnson conveyed the land to Mrs. Savage, and Blinett released to her all claim as tenant by the curtesy. Mrs. Savage held possession in the same way that Blinett had done, until her death in 1830, when the land was purchased by the plaintiff, who was in possession before the sale, as tenant, and, after the sale, has continued in possession up to this time. In 1831 the plaintiff built a house and cleared a field on the 350-acre tract, near where Mrs. Lanier had lived, and he has lived there ever since.

One of the plaintiff's exceptions raises a question as to the validity of Johnson's title, the whole of one tract and the greater part of the other being covered by elder grants. The reply is that the length of possession, from which every presumption necessary to sustain the title under which it has been enjoyed will be made, and the statutes of limitations have not merely taken away any right of action under those old grants, but have perfected the Johnson title. As to the 300-acre tract, there has been a continued possession under the Johnson title for about sixty years, during which time Hall, to whom a grant issued in 1751, has not been heard of, and neither he nor any one claiming under him has ever set up claim to the land. It is said that, for aught that appears, Hall may have died before Johnson's grand issued, leaving an (434) heir under disability, and by an accumulation of disabilities it may be that some person may now have a right to set up his title. Such an event is possible, but it is a remote possibility; and although equity will not compel a purchaser to accept a doubtful title, the doubt must be a reasonable one (Emery v. Gracock, 6 Mad., 41; Hillory v. Waller, 13 Ves., 249), such as would deter a prudent man, who wished to buy, from making the purchase; especially when, as in this case, the purchaser takes possession without objection until long afterwards.

As to the 350-acre tract, possession was held of that part which is covered by the Whitfield grants, by Mrs. Lanier, claiming under Blinett, who held under the Johnson title for more than seven years prior to 1819; and possession has been held by the plaintiff, himself, for more than seven years before this bill was filed; and besides this actual possession, the land has been used during the whole time by the persons cultivating the other tract, for the purpose of getting wood. The same doubt does not exist as to the person entitled to the Whitfield grant as was suggested in reference to the Hall grant; for it is shown that Whitfield's title belongs to one Wall, who brought an action of ejectment against the plaintiff, claiming all that part of the 350-acre tract which is covered b the Whitfield grant. The case was tried several times in the court below, and once in this Court, and was finally decided in favor of the Johnson title. It appears from the plat, filed as an exhibit, and the proof, that the possession of Wall did not extend over any part of the 350-acre tract, and there was nothing to prevent the possession of the plaintiff from perfecting the Johnson title. The law upon that question is clear, and there is no doubt as to the fact of possession. It is true (435) that a recovery in ejectment is not of itself sufficient to show that the title is good; for a new action may be brought, but the pendency of the action is calculated to elicit the facts, and in this case the title is put beyond question by the operation of the statute of limitations. It is objected that a purchaser should not be required to take a title which has been made good by the statute. We see no force in the objection. So that the title be good, it matters not how it is made so.

As to 17 1/2 acres of this tract, which is covered by the Colson grant, the Johnson title is not good; for, this parcel being in woods and no possession being taken of it by those claiming under the Johnson title, so as to interfere with the Colson grant, the continued possession has been in Colson and those claiming under him, as his was the older title. But taking off this parcel does not so materially affect the value of the rest or make such a substantial alteration in the subject of the contract as to entitle the plaintiff to have it rescinded, because compensation can be made by making a deduction of the value of this parcel; and it must be declared to be the opinion of this Court that the plaintiff has an equity to have a credit entered upon his bonds for such sum as may be the value of this parcel, compared with the residue, upon the supposition that the whole is worth $4,500.

Second. As to the title of Mrs. Savage. Mrs. Nesbitt, the mother of Mrs. Savage, had two children by a former husband — John Colson and Jane, who are both living. Jane married one Norwood, who is dead. John Colson and Norwood and wife were parties plaintiffs to the bill filed by Mrs. Savage against Johnson and Blinett, and are concluded by the degree under which Johnson conveyed to Mrs. Savage, and cannot be heard to impeach it after so long an acquiescence. Blinett has released his claim as tenant by the curtesy, and Mrs. Norwood, since the death of her husband, has also released. This makes it (436) unnecessary to decide the many interesting questions that were raised in the argument upon the supposition that the decree did not conclude them. The fact that they were parties seems to have been overlooked in framing the exceptions. The exceptions to the report of the master are overruled, except as to the 17 1/2 acres.

It was further insisted that the plaintiff had a right to have the contract rescinded because there was unfair bidding or "puffing," as it is termed. Before the sale, Charles Savage and Lyde contracted to let one Wall and Waddell have the tract for $3,000, whether it sold for more or less, and for this purpose Charles Savage was to buy the land at the clerk and master's sale; and if he was forced to bid more than $3,000, he and Lyde were to lose, each, a third of the excess, and Wall and Waddell were to pay the other third to Samuel Savage, who was under age, and could not be bound by the agreement. When the land was run up to $4,000 by the plaintiff, Wall and Waddell released Savage and Lyde from their contract, and Savage afterwards continued to bid until it went up to $4,500, and was struck off to the plaintiff.

If Savage, after the release, continued to bid, not for the purpose of buying the land, but with a view to run it up on the plaintiff, in pursuance of an understanding between himself and Lyde, acting for themselves and their infant brother, upon this fact being shown, the court would not have confirmed the sale; and it may be that if it had been properly charged and in apt time it would have sustained a bill to rescind the sale. But there are no sufficient allegations in the present bill to raise the question. There is no allegation of an understanding between Savage and Lyde to run the land up on the plaintiff; and, for aught that is alleged, Savage may have continued to bid for the purpose of buying the land for himself, as he had a right to do. There is no allegation that the plaintiff was, by reason of the bidding, induced to (437) give more for the land than it was worth, or than he had before made up his mind to give; and there is no allegation as to the time when these facts came to the knowledge of the plaintiff, so as to take the cause out of the principle laid down in McDowell v. Simmons, ante, 278. The allegation is simply that, after the release, "Savage was the principal bidder in running said land up to $4,500 upon your orator."

The injunction must be dissolved, except as to the sum of $261, which sum is retained until the report is made as to the 17 1/2 acres. The plaintiff must pay all costs. There must be a reference to ascertain the value of the 17 1/2 acres, compared with the whole land, supposing the whole worth $4,500.

PER CURIAM. Decree accordingly.

Cited: Knight v. Houghtalling, 85 N.C. 31.