In December, 1841, the defendant, the executor of Mary Jones, deceased, offered at public sale two tracts of land, as having been the property in fee of the testator, which he was authorized to sell. As to one of the tracts, the bill states that the defendant declared, that he would sell only such interest as his testatrix had, and at the risk of the purchaser. As to the other, containing 100 acres, the defendant announced that it was the property of the testatrix, although he had been unable to find any deed for it, and that he would warrant it to the purchaser. This latter piece, the plaintiff purchased at the price of $303, and he immediately gave his bond therefor and *Page 314 took a conveyance and entered into possession of the land.
The bill states that in the course of the next summer, (407) further doubts arose as to the title to the land, and that there was some negotiation between the parties about rescinding the contract; but that, finally, the defendant, in November, 1842, declined doing anything further, and thereupon, the plaintiff offered to surrender the deed and demanded his bond, and abandoned the premises. The defendant afterwards took a judgment on the plaintiff's bond, and he then filed the bill to have the contract rescinded and the judgment perpetually enjoined.
The bill states, that search has been made, in the register's office, and that no evidence of any title in the testatrix can be found, and that the plaintiff believes none exists.
It further states, that upon consulting counsel upon the question of title, it was discovered, that the deed, which the defendant made, conveyed but an estate for the plaintiff's life, although the defendant contracted to convey in fee, and the warranty is to the plaintiff and his heirs. The bill charges, that the plaintiff is an illiterate man, and that the deed was prepared by the defendant or under his direction, and was accepted by the plaintiff, not knowing the deficiency therein and in the confidence that it was according to the contract.
The answer denies, that the defendant undertook to covenant, that the land had belonged to his testatrix. On the contrary, the defendant says, that, in respect to a small tract, he refused to make any covenant, because he could not discover any trace of right in the testatrix except possession; and the purchaser was to take a conveyance without warranty. With respect to the other tract, which the plaintiff purchased, the defendant admits it was otherwise. He says that he discovered that his testatrix never had a deed for it; but that, understanding that one William Jones had taken a conveyance for it from a former owner upon some trust for the testatrix, he had applied to him to know how the truth was; and that William Jones (408) admitted that he held the title under an engagement to convey it to Mary Jones, and accordingly he executed a deed to the defendant, as the executor and devisee of Mary Jones. Believing, from those circumstances, that the land really belonged to his testatrix, and that the purchaser would never be disturbed, although he was unable to trace the title back beyond William Jones, the defendant states, that he publicly made known to the plaintiff and other persons present, the state of the title, and in order to enhance the price by satisfying bidders of their security, he agreed that he would make a *Page 315 deed for the fee and give therein his own covenant or warranty, binding him and his heirs to indemnify the purchaser, if he should be disturbed in the possession. And the answer positively avers, that it was understood that the purchaser was to have no other security for the title, but the conveyance of the defendant in fee, with his covenant against an eviction by superior title.
The defendant admits, that, as he is advised, the deed made by him, is only for a life-estate, and that, by the terms of the sale, he was to make one purporting to convey a fee, with general warranty. But he says that neither the plaintiff nor he being versed in drawing conveyances, application was made to a merchant, residing at the place of sale, and supposed to be competent thereto, and that the deed was drawn by him as the friend of the parties; and that it was executed by the defendant in the belief, that it was a deed for the fee simple; that he had no suspicion to the contrary, until the plaintiff, after the judgment at law, informed him of the defect: and that then the defendant offered to make any deed plaintiff might wish, which would carry out the agreement between them, but the plaintiff declared that he would not take one.
The answer further states, that the plaintiff had sold and conveyed a part of the land, about five acres, to Benjamin Sims, who claims and occupies it. (409)
The defendant filed, with his answer, the deed to him by William Jones; and also another deed to the plaintiff, and submits to be bound by it or to make a conveyance in fee with any covenants, to which the Court shall declare the plaintiff entitled. The parties have taken much testimony; and the substance of it is clearly in support of the answer. There were no written articles, but the crier at the sale and several of the bidders prove that the defendant gave distinct notice, that doubts rested upon the title, as he was unable to trace it or find any evidence of it upon the register's books; and that the defendant, in order to induce persons to bid a fair price for the land, said that he would warrant the title. The witnesses all understood that the purchaser was to take a conveyance for the land at all events, whether the defendant could show a good title or not in his testatrix or himself, provided he would bind himself by a general warranty in the deed. They state that *Page 316 the defendant was known to be a man of substantial and independent property, and that the bidders considered the title good to them by his agreement to make it good in case of an eviction. It is evident, that the plaintiff, also, had the same impression and understanding. For, after he was declared the purchaser, he made no inquiry as to the title, nor asked any delay for the purpose of looking into it; but was satisfied to give his bond for the price immediately, and take a deed, purporting, as was then thought, to convey a fee, and containing a general warranty, binding the defendant and his heirs. He also sold a part to another person, and conveyed it in fee. If there be a defect in the title, therefore, it can not affect the contract (410) these persons made; for the contract, in terms provided for such a possible or probable defect, and for the consequences of it. If a person chooses to buy a doubtful or bad title with his eyes open, and at his own risk, he is as much bound by that, as by any other contract fairly made. So, if he buy such a title with a guaranty of the seller against eviction or disturbance, he must take the title, and look to the vendor's covenants for his security or indemnity. He can not complain of any injury; for he gets precisely what he bargained for, namely, a conveyance with the warranty of the vendor. In such a case the court will not look into the title at all; because the bargain was, that it was immaterial whether it was good or bad, provided the vendee had a covenant of indemnity. The plaintiff, therefore, would have been clearly bound to pay the purchase-money, had the deed, that was made to him, been for a fee. That it was not, was merely by the mistake of the writer, and of the parties — as much of the one as of the other — as is proved by the writer of the deed and the subscribing witnesses. All thought it to be for the fee. The defect can not excuse the refusal of the plaintiff to fulfill his part of the contract, inasmuch as the defendant, as soon as he had notice of it, offered to supply it by making another deed, and now submits to convey under the direction of the Court. The injunction ought, therefore, to be dissolved with full costs up to this time, and the plaintiff declared entitled to a deed from the defendant for the premises, which shall purport to convey the fee simple, and contain a general warranty or covenant of quiet possession, binding the defendant and his heirs, to be approved of by the Clerk.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Mills v. Abrams, 41 N.C. 462; Wilkins v. Hogue, 55 N.C. 481. *Page 317
(411)