Eames v. Armstrong.

48 S.E. 769, 136 N.C. 392, 1904 N.C. LEXIS 284

• Court: Supreme Court of North Carolina
• Decided: November 15, 1904
• Status: Published

Opinion

Douglas, J.

This is an action for damages in a breach of covenant in a deed conveying land. The covenants sued on are set ont in section 3 of tbe complaint as follows: “Tbat tbe said deed so made, executed and delivered as aforesaid, contained covenants in substance as follows: 'And tbe said parties of tbe first part (i. e., tbe said C. A. Armstrong and wife, N. J. Armstrong, tbe defendants in tbis action) covenant tbat they are seized of tbe premises (i. e., tbe lands described in said deed and in tbis complaint) in fee, and bave right to convey tbe same in fee-simple; tbat tbe same are free and clear from all incumbrances.’ ” Tbe plaintiff further alleges tbat at tbe execution of tbe deed tbe defendants did not own tbe land, were not in possession thereof, and bad no right to convey it. Wherefore be demanded damages in tbe sum of $2,300, tbe purchase price of tbe land. Tbe defendants in apt time demanded a removal of tbe action to Montgomery County in which tbe land is situated. Tbis motion was refused.

Tbe naked question before us is whether tbis action comes within any of tbe provisions of section 190 of Tbe Code, which is as follows: “Actions for tbe following causes must be tried in tbe county in which tbe subject of tbe action or some part thereof is situated, subject to tbe power of tbe Court to change tbe place of trial, in cases provided in the Code:

(1) For tbe recovery of real property or of an estate or interest therein, or for tbe determination in any form of such right or interest, and for injuries to real property.

(2) For tbe partition of real property.

(3) For tbe foreclosure of a mortgage of real property.

(4) For tbe recovery of personal property distrained for any cause.”

It does not so appear to us, at least as tbe pleadings now stand. Tbe plaintiff does not claim any interest in tbe land. On tbe contrary, be disclaims any interest therein — his alleged failure to acquire any such interest constituting bis cause of action. If lie wins bis case tbe title to the land will be in no way affected; while if he loses it we cannot see how the title of those not parties to the action could be affected thereby.

The defendants rely on the cases of Mfg. Co. v. Brower, 105 N. C., 440, and Fraley v. March, 68 N. C., 160, but those cases, construed in the light of their essential facts, do not sustain their contention. In the former case the Court says, on page 445: “The chief, and, so far as Buxton is concerned, the only purpose of this action is to compel J. C. Buxton, the trustee, to sell lands in the county of Surry, and to order Brower to convey the Buck Shoals lands to the Brower ' Manufacturing Company,” etc. In Fraley v. March, the folloAving is the entire opinion of the Court: “The law of the venue of actions, with reference to the residence of the parties, does not govern this case, but the law of the venue with reference to the ‘subject of the action.’ It is substantially an action ‘for the foreclosure of a mortgage of real property,’ and that must be tried in the county where the land is situate.” C. C. P., 66.

The plaintiff relies upon Phillips v. Holmes, 71 N. C., 250, which seems to us in point. In that case the Court says, on page 252: “Apart from this provision of The Code fixing the venue, the action is upon a personal covenant sounding in damages. The covenant is not that certain improvements shall be put upon the land, but that if they are put upon the land they shall be paid for; in effect, therefore, the action is simply for Avork and labor done, and in no sense differs from other personal actions. On a breach of the covenant, it becomes a mere personal right which remains Avith the covenantee or his executors and does not descend with the land or run Avith it.”

Baruch v. Long, 117 N. C., 509, seems also to sustain the same principle. In that case the action Avas brought to set aside certain docketed judgments, as “being in the nature of a statutory mortgage,” but it was held that the case was not removable as a matter of right, as such a lien upon land is not an interest therein. In that case Clark, J., in speaking for the Court, says: “The Judge in his discretion might remove the action if the convenience of witnesses or the ends of justice would be promoted by the change, * * * but he cannot be required to remove the cause upon the grounds stated.” These words apply peculiarly to the case at bar. It might well have been removed to «the county of Montgomery if the essential evidence upon which the case depended was located in that county, but this was a matter within the legal discretion of the Judge and not reviewable by us in the absence of any suggestion of abuse. The judgment of ^he Court below is

Affirmed.'