Guy v. First Carolinas Joint Stock Land Bank of Columbia

171 S.E. 341, 205 N.C. 357, 1933 N.C. LEXIS 557

• Court: Supreme Court of North Carolina
• Decided: November 1, 1933
• Status: Published

Opinion

Stacy, C. J.

The plaintiff first sued for breach of the covenant of quiet enjoyment, but as he was not able, or failed, to allege eviction under paramount title, ouster or adverse claim, his complaint was held demurrable. Guy v. Bank, 202 N. C., 803, 164 S. E., 323.

The present action is for alleged breach of covenant of seizin, but as the deed under which plaintiff acquired title contains no covenant of seizin (Cover v. McAden, 183 N. C., 641, 112 S. E., 817, Price v. Deal, 90 N. C., 290), the judgment of nonsuit was properly entered. It is the rule with us that there are no implied covenants with respect to title, quantity or encumbrance, in the sale of real estate. Peacock v. Barnes, 139 N. C., 196, 51 S. E., 926; Barden v. Stickney, 130 N. C., 62, 40 S. E., 842; Zimmerman v. Lynch, ibid., 61, 40 S. E., 841. In the absence of any fraud, mistake or overreaching, the doctrine of caveat empior applies. Smathers v. Gilmer, 126 N. C., 757, 36 S. E., 153; Walsh v. Hall, 66 N. C., 233.

Speaking to the subject in Foy v. Haughton, 85 N. C., 169, Ruffin, J. (the younger), delivering the opinion of the Court, saidr “But the rule of law is, that in sales of land it is the duty of a purchaser to guard against all defects, as well of title as of encumbrance or quantity, by taking proper covenants looking to that end, and if he fail to do so, it is his folly, against which the law, that encourages no negligence, will give him no relief.”

This, however, would not deprive the plaintiff of the right to bring his action under the principles announced in Henofer v. Realty Co., 178 N. C., 584, 101 S. E., 265, Turner v. Vann, 171 N. C., 127, 87 S. E., 985, May v. Loomis, 140 N. C., 350, 52 S. E., 728, if so justified by the facts.

Affirmed.