Eccles v. . Timmons

95 N.C. 540

• Court: Supreme Court of North Carolina
• Decided: October 5, 1886
• Docket: 35
• Status: Published

Opinion

Smith, C. J.

(after stating the facts). It will be observed, that the title of the defendant-tenants is set out in the peti tion, and a copy of the deed' under which they derive it, annexed thereto.

With the information thus furnished or of easy access, the purchaser bids for the lot, pays part of the purchase money, and secures the residue by a note with the allowed credit. This credit expired on December 1st, 1885; and seven months thereafter, when served with a notice of a demand for judgment, for the first time the defence is set up of an imperfect title to the lot.

It is not a case when, upon the-face of the pleadings, a perfect title purports to be sold that is afterwards discovered to be defective, when the Court will relieve and not compel the purchaser to pay for what he does not get. But the true state of the title appears in the averments in the petition itself, so that every bidder may know by examination what estate he will acquire in the land, and his bid must therefore be regarded as his own estimate of the value of wliat he may buy and the Court may direct thereafter to be conveyed.

“ A sale by the Master in a case of this kind, (for partition),” says Ruffin, C. J., in Smith v. Brittain, 3 Ired. Eq., 347, (351); “is but a mode of sale by the parties themselves. It is not merely a sale by the law, in invitwn, of such interest as the party has or may have in which the rule is, caveat emptor, but professes to be a sale■ of a particular estate, stated in the pleadings to be vested in the parties, and to be disposed of for the purpose of partition only. Thereupon, if there be no such title, the purchaser has the same equity against being compelled to go on with his purchase, as if the contract had been made without the intervention of the Court; for in truth, the title has never been judicially passed on between persons contesting it.”

So, if a purchaser neglects to look into the title, it will be considered his own folly, and he can have no relief. Sugden on Vendors, 347.

The petition in the present case truly represents the inter ests of the parties to the proceeding, and the purchasers, presumed to know the law, buys such as they possess, and therefore ought to pay his bid. We have not laid stress upon the provisions of the deed out of which the difficulty arises, nor to the numerous cases which have been before the Court and are pressed in the argument of appellant’s counsel; nor to a possible construction, which puts the legal estate in the covenantees and invests it with the'trust declared in the concluding clause of the deed, so that these are represented by the trustees, since it is not material to decide whether a full and perfect title can be transmitted to the appellant, inasmuch as he gets what he bought, and there are no equitable circumstances which entitle him to the relief asked.

There is no error, and this will be certified that the cause may proceed according to law.

No error. Affirmed.