Hobson v. . Buchanan

2 S.E. 180, 96 N.C. 444

• Court: Supreme Court of North Carolina
• Decided: February 5, 1887
• Status: Published

Opinion

Smith, C. J.,

(after stating the facts). The material finding, that the last deed is sufficient to convey, and does convey the estate in fee in the land, and embraces all the territory described in the bond, the conditions essential to a recovery of the debt and the maintenance of the action to enforce payment by a sale of the premises, is left undisturbed by the exceptions, and forms no barrier to the relief sought.

It is sufficient that the vendor is able to make title before final judgment, although not when his suit was begun. It is so held in Hughes v. McNider, 90 N. C., 248; and Fortune v. Watkins, 94 N. C., 304; and other cases.

The matter involved in the exceptions, as. ruled by the Court below, only enters into an inquiry as to the costs. The argument derived from the fact that the plaintiff could not make title when he began his action, would have more force if the defendant had been ready to make payment on condition of getting the estate bargained for; nor does he make deposit, as does the plaintiff of a sufficient deed, to avoid any further proceeding in the cause. He opens a warm contest, and persists in it up to the last moment, and fails. Why then should he not be taxed with costs so incurred, as well as those incurred upon the appeal ?

It is suggested that an appeal involving costs merely, will not be entertained, but the appeal calls in question the entire judgment, and the costs only as incidental thereto. May v. Darden, 83 N. C., 237 ; State v. Byrd, 93 N. C., 624 ; Morris v. Morris, 94 N. C., 613.

There is no error, and the judgment must be affirmed.

No error. Affirmed.