Buckman v. . Bragaw

134 S.E. 422, 192 N.C. 152, 1926 N.C. LEXIS 240

• Court: Supreme Court of North Carolina
• Decided: September 15, 1926
• Status: Published

Opinion

BeosdeN, J.

It was conceded that tbe plaintiffs cannot recover upon a breach of warranty.

Tbe question therefore presented for solution is whether or not a purchaser at a trustee’s sale of land under a deed of trust or a mortgage, can recover for a shortage of land in the absence of any representation made by the seller except such as may be contained in the advertisement or the deed of the trustee or mortgagee.

In Smathers v. Gilmer, 126 N. C., p. 759, the principles of law governing such eases are thus expressed: “The plaintiff had two opportunities for protection: 1. A simple calculation, according to the definite boundaries, courses and distances. 2. To require proper covenants in his deed for his protection.

Failing to avail himself of those means, he purchased at his own risk and subject to the principle of caveat emptor. When each party has equal means of information that principle applies, and the injured party is without remedy. If, however, false representations are made, on which the other party may reasonably rely, they constitute a material inducement to the contract, and the injured party has acted with ordinary prudence, courts of justice will afford relief. Ordinarily, the maxim of caveat emptor applies equally to sales of real and personal property, and will be adhered to where there is no fraud.”

The lot of land in controversy was not sold by the foot or by the acre, and there can be, under the law of this State, no recovery for a shortage under such circumstances in the absence of any representation of fraud. Turner v. Vann, 171 N. C., 127; Galloway v. Goolsby, 176 N. C., 635; Duffy v. Phipps, 180 N. C., 313; Lantz v. Howell, 181 N. C., 401. The judgment must be

Affirmed.