Lemuel H. Whitfield had been the guardian of the defendant William A. Whitfield, and the plaintiff Hatch Whitfield was his surety on his guardian bond. The plaintiff, in 1839, removed to the State of Mississippi, and was residing there in 1840, when a writ was taken out against the said Lemuel H. and himself on account of the said guardian bond. This was served upon the former, but the plaintiff not being found a judicial attachment was taken out, which was levied on six tracts of land, lying contiguous to each other, containing about 5,973 acres, and two lots in the town of Waynesboro, and on advertisement being made, a judgment was taken against Lemuel H. Whitfield and himself for $2,325.66. There was an execution taken out as to L. H. Whitfield and levied on his land and slaves, and avenditioni exponas taken out to sell the lands of the plaintiff which had been levied on by the judicial attachment, and they were sold for $2,000. At the sale of the lands the defendant W. A. Whitfield declared publicly that he did not wish any one to bid against him for the land about to be offered; that he only wanted to bring his brother Hatch Whitfield, who was then in Mississippi, to a settlement, and he was afraid if any one else bought the land he would not let his brother have it back; that he would sell the *Page 253 outskirts of the land and let his brother have the home plantation. (317) In consequence of these assurances and others of the same kind made before, several persons abstained from bidding, and, amongst others, the defendant Buckner L. Hill, and the defendant W. A. Whitfield was thus enabled to buy the land at greatly below its value, to wit, $2,000. A part of the land in question adjoined the defendant Hill, and he was very solicitous to buy this part, and went to the courthouse on Monday, the day advertised for the sale, with the view and purpose of bidding for the land, but he was dissuaded from doing so by the representations made to him by the defendant Whitfield, of the character above set forth, so that he was not present at the sale at all. Afterwards (in a short time) he got from the defendant Whitfield the land he wanted, amounting to about 1,902 acres, by paying him a full price for it, to wit, $2,377.50. W. Whitfield also sold a small portion of it to one Herring.
The bill alleges that the plaintiff had no knowledge of the proceeding in court upon which the judgment was taken against him until after the sale of his lands, living, as he then did, in a distant State and having received no information on the subject; that Lemuel Whitfield, the other defendant in the execution and the real debtor, had abundant means within the bailiwick of the sheriff, consisting of lands and slaves, to satisfy the judgment; that he went forward and insisted that if any one's property was to be sold to satisfy this debt it should be his; that the land bought in by W. A. Whitfield was worth at least $10,000, and that several of his friends who were present at the sale urged that the land should be sold in separate tracts, and that if this had been done, and a fair competition allowed, there would have been no necessity for selling more than the town lots and one of the tracts; but that all this was met by the assurance that Lemuel Whitfield had put money into the hands of plaintiff to pay the debt, and that all he wanted was to force his brother to a fair settlement of the claims he had against him, and that the sheriff, in his course, was influenced by this (318) assurance; that there was a fraudulent combination and agreement between the defendants W. A. Whitfield and Hill — for the former to buy the land and for the latter to have it from him at nearly the price he might give for it — and that a few days after this sale this fraudulent arrangement was consummated by the defendant Whitfield conveying a part of the land set forth distinctively in the pleadings for the sum above stated. This bill was filed in 1856.
The defendant W. A. Whitfield did not answer the bill, and a judgmentpro confesso was taken, and the bill heard ex parte as to him.
The defendant Buckner L. Hill answered, denying that he made any arrangement or had any understanding with his codefendant as to *Page 254 stifling competition in the bidding for the land, or was cognizant of any trust or arrangement between the brothers, or of any equitable claim the plaintiff had to have the land levied on or any part of it reconveyed; that he did desire to have a part of the land, and went to the place appointed for the sale in order to bid for it, but the sale was postponed, as he then understood from a friend of the plaintiff, because of some defect in the advertisement, and he gave himself no further concern about the matter until after the sale (at which he was not present), when the other defendant approached him and offered him a part of the land; that after some negotiation he agreed to give, and did give, the sum stated for the number of acres above set forth; that this was the very highest market price for the land and more than he would have given if he had not previously agreed to abide by the price which a referee mutually chosen by them should fix upon; that he paid $700 down and the remainder of the sum after the land was surveyed and the deed made to him.
There were no proofs taken in the cause, the substance of which, material to the case, is set forth in the previous part of the statement.
The prayer of the bill is for a reconveyance of the land and for an account.
(319) After the sale to Hill, he entered upon a part of the premises and has cultivated it ever since. For this part the plaintiff, in 1842, brought an action of ejectment, which has pended ever since in the court of law, and is still there pending. As to another part of this land, this defendant has not been able to get possession, but he commenced an action of ejectment for that part in the said court of law about the time the suit was begun against him, which is still pending. Hill v.Whitfield, 48 N.C. 120. We are satisfied the defendant Whitfield "stifled the bidding," and was enabled to buy the land for a sum greatly under its value, by assuring several gentlemen who wished to purchase that his object in forcing a sale was merely to effect a "brotherly arrangement" and compel his brother to come to a fair settlement, upon which he would reconvey the land, and requesting them, as it was a family matter, not to bid against him. We are satisfied that the defendant Hill was one of the gentlemen who was influenced, either directly or indirectly, by these assurances and representations not to bid. But the allegation that Hill colluded with William A. Whitfield, and was induced not to bid by reason of an understanding that he was to share in the spoils and take *Page 255 the part of the land which he wished to buy "at nearly the same rate that William Whitfield should buy it at," is not proved; on the contrary, we are satisfied that he gave a full and fair price. It is true, the fact of his buying so soon after the sheriff's sale raises an inference that his conclusion not to attend the sale and bid was in some measure attributable to an expectation that he would be able to buy the part of the land he wanted from William A. Whitfield should he become the purchaser. Whether this expectation was caused by the circumstance that the embarrassment under which William Whitfield labored, in consequence of the delay and difficulty in drawing his funds out (320) of the hands of his guardian, would compel him to sell a part of the land, or by a direct assurance to that effect, is a question which need not be solved, for, assuming that Hill expected to buy a part of the land, the significance of this fact is, in a great measure, taken away by the fact that he expected to give, and did give, a full price for it; so the amount of it is: he was induced not to bid, as well by an expectation that he would have an opportunity to buy a part of the land as by the assurance that William Whitfield's object in forcing a sale and becoming a purchaser was simply to place himself in a condition by which he would be able to effect a family arrangement. But he expected to make no gain other than what is incident to the privilege of buying property at a fair price, provided the parties could agree in respect to it. And the equity of the plaintiff, as against Hill, is attenuated to this: he bought from William Whitfield with notice of the plaintiff's equity to have back the land upon paying the amount due to William Whitfield; but he is relieved of all imputation of a fraudulent complicity, and is entitled to this further favorable consideration: the amount paid by him was just about enough to satisfy the judgment, and he made cash payments to meet the necessities of William Whitfield, thus doing what the plaintiff was bound, not only at law, but in conscience, to have done, and may fairly claim the benefit of being considered as having done that much in part performance of the family arrangement which William Whitfield professed to be desirous of effecting.
There can be no doubt, however, that the plaintiff had an equity to have back all his land, which extended to Hill by reason of the notice, provided he had come forward within a reasonable time and offered to pay him the amount which he had advanced. The plaintiff was ill advised, and chose to insist upon a supposed legal right to avoid the sheriff's sale and hold all the land without satisfying the judgment. But for his mistake in this particular, the whole matter might at first have been easily adjusted. He had only to offer to confirm the sale to Hill, and in that way satisfy the judgment. By doing so, his right to have a reconveyance of the rest of the land would have been made (321) *Page 256 too clear to admit of any doubt or opposition. Now, the question is, as he elected to insist upon a right at law, to which he was not entitled, in consequence of which there has been much litigation and a delay of morethan seven years, during all of which time he has neglected the duty of discharging the judgment and availed himself of the opportunity which this litigation afforded to evade its enforcement, is it not too late for him to fall back upon an equity growing out of the fact that the bidding at a sale made by the sheriff was stifled, and claim a reconveyance of the property upon an offer now for the first time made to pay the amount due upon the judgment, provided he is allowed credit for the profits made out of the land, thus, in effect, taking advantage of his own wrong in order to reap the fruits of another's labor?
In McDowell v. Sims, 41 N.C. 278, it is held that the equity growing out of "puffing" at a sale must be insisted upon in a reasonable time, and it would seem, from analogy, that the equity growing out of "stifling the bidding" should be subject to a like restriction, for the defendant, in the execution, is certainly in default so long as he suffers the debt to remain unpaid. But we will not decide the question, for in this case, by the plaintiff's own showing, his equity is barred by the statute of limitations upon the principle established in Taylor v. Dawson, 56 N.C. 86, the sale having taken place in 1842 and the bill filed in 1856.
The pendency of the action at law does not bring this case within the exception, according to the ruling in Hall v. Davis, 56 N.C. 413, because the cause of action is not the same. The right which the plaintiff insisted upon at law was to set aside the sheriff's sale in toto and treat it as a nullity. The right which he now insists on, in equity, is to convert the defendants into trustees, assuming the validity of the sale to pass the legal title and admitting the right of the defendants to (322) hold the land as security for the amount of the judgment and costs, which two rights are wholly inconsistent.
In this connection, it may be well to remark that the injunction in our case was improvidently granted. The plaintiff ought to have been required, as a preliminary to his coming into a court of equity, to enter a nonsuit in the action of ejectment brought by him, and to permit the defendants to take judgment in the action of ejectment brought by them, so as not to allow litigation in both courts.
It is settled, that if it appears on the face of the bill that the plaintiff's case is barred by the statute of limitations, advantage may be taken of it by motion on the trial. Robinson v. Lewis, 45 N.C. 58.
The bill in respect to the defendant Hill will be dismissed and the plaintiff will have a decree against the defendant William Whitfield, against whom there was judgment pro confesso, declaring that he is entitled to a reconveyance of the land, except the parts conveyed to Hill *Page 257 and Herring, and to an account, in which the plaintiff will be allowed the sums received by William Whitfield of Hill and Herring, upon his agreeing to confirm their title as a credit, and will be charged with the amount of the judgment and costs.
PER CURIAM. Decree accordingly.
Cited: Leggett v. Coffield, post, 384; Smith v. Morehead, 59 N.C. 362;Barham v. Lomax, 73 N.C. 79; Isler v. Dewey, 84 N.C. 348; Oldham v.Reiger, 145 N.C. 258.
(323)