The plaintiff purchased of the defendant two tracts of land, situate in the County of Cherokee; one tract, known as No. 155, and the other, as 153; the first, described by metes and bounds, and expressed to be for ninety-four acres; the other, described in like manner, as containing one hundred and seventy-one acres; and took from the defendant a conveyance of his interest in the said two tracts, which was that of a purchaser at the commissioner's sale in 1838; and also took from him an authority to the Secretary of State, to issue the grant whenever he, the plaintiff, should discharge the bonds which defendant had given the State for these lands. After this trade, the defendant removed to Georgia, where he still resides.
The plaintiff alleges, in his bill, that the defendant had been in possession of the premises for many years before he sold to the plaintiff, and that he had made valuable improvements — such as a good dwelling-house, out-houses, grist-mill and orchard, and had improved much of the land by clearing; that when the plaintiff was viewing the lands with the intention of purchasing, the defendant pointed out these improvements and clearings as situated on the 171 acre tract; but to his astonishment, afterwards, on surveying the lands, he (488) found that no part of these improvements was on the tract designated in the deed, but that they were on unappropriated lands *Page 402 belonging to the State; that the price he was to give for the said tracts of land was $600; that he paid down $300, and gave his bond for $300, of which he has paid all but $182; that the said improvements were worth some two or three hundred dollars; that the defendant well knew the fact that the boundaries of the two tracts did not include the improvements, but fraudulently misrepresented the matter as above stated; that suit was brought on the bond given by plaintiff to the defendant, and a judgment taken for the remainder of the purchase-money, and that execution was about to be taken out upon it.
The prayer of the bill is for an injunction, and for general relief.
The answer of the defendant admits the contract and conveyance as set forth, and that he described and pointed out the improvements, etc., as being on the lands designated; he says, also, that "it may be that the lines of his tract do not include all his improved lands, or all which he supposed he was selling, or that the plaintiff thought he was purchasing;" but he avers that, by his purchase, the plaintiff acquired rights under the laws, in virtue of these improvements and occupancy, which enabled him, for a trifling sum, not exceeding twenty dollars, to perfect a grant for the land, including the improvements; and he avers further that the plaintiff has already done this. He says that he was entirely ignorant of the fact that the improvements were outside of his lines.
There was replication to the answer. Subsequently, it was referred to the clerk and master of the Court of Equity of Cherokee, to enquire and report "how much land, if any, represented by the defendant to be included within the boundaries of his title, is not so included; and its relative value; and what rights, if any, plaintiff acquired by his said purchase; and if he has secured any legal or other claim thereto, upon what rights he did so." Upon this reference, Mr. Axley, (489) the commissioner, reports, among other matters:
That the dwelling-houses, out-houses, orchard, garden, and twenty-five acres of cleared land are not included in the boundaries designated in the deed from the defendant to plaintiff, but were on vacant land, and that this part had been represented by defendant to be included in his boundaries; that, by this purchase plaintiff acquired no right to this omitted part, except the right of possession; that the plaintiff availed himself of this pre-emption right, and entered one hundred acres, including the buildings, which cost him $22.41; that the value of these improvements was $250. He further reports that the cleared land, outside of the lines designated, had been entered by one B. Allison, which was procured from him by plaintiff, and that he *Page 403 subsequently obtained a grant for this part also, which cost him $22.41 more; in all $44.82; and that the value of this improvement was $50.
The cause was set down for hearing on the bill, answer, exhibits and former order; also, upon the report of the commissioner, and upon a motion to dissolve the injunction heretofore issued, and sent to this Court by consent. The plaintiff purchased from the defendant two tracts of land in Cherokee County, situated in the fifth district; one known as number 153, the other as number 155; one containing 94 acres, the other 171, for the price of $600, of which he paid $300, and gave his bond for the balance, payable one day after date. The defendant had been in possession many years previous to the year 1838, and had made valuable improvements on them, consisting of houses and an orchard, and cleared much of the land; all of which were shown to the plaintiff by the defendant, as being on the land owned by the defendant. The plaintiff took possession, and having the 171 acre tract surveyed, which was No. 153, found that the most valuable improvements, such as the dwelling-house, barn and cleared ground, were on vacant (490) land, all of which were shown to him by the defendant as being on No. 153, and he purchased under that belief. The purchase-money has been paid up, except $180, for which the defendant has brought an action against the plaintiff; the defendant being a citizen of Georgia, and owning no property in this State, the plaintiff has no remedy at law, and he prays an injunction to restrain the defendant from enforcing his judgment for the sum unpaid. The defendant alleges that, at the time of the sale of the plaintiff, he fully believed that all the improvements mentioned, were on lot No. 153, and that the plaintiff, at a small expense, might get the title to No. 155. The case was referred to commissioner Axley, to enquire and report how much land, if any, represented by defendant in negotiating his contract of sale to the plaintiff, to be included within the boundaries of his title, that is not so included, and its relative value; and what rights, if any,plaintiff acquired by his purchase; and if he has secured any legal, orother claim thereto, upon what right he did so, and at what cost. The commissioner reported that, under his purchase, he acquired no right to the land and improvements outside lot 153, but the possession. But under the provisions of the act of 1851, concerning the purchase of Cherokee lands, he acquired a pre-emption right to one hundred acres *Page 404 of land, by being in the possession; and having the right of possession by virtue of his contract aforesaid, the plaintiff availed himself of his pre-emption right, entered one hundred acres, including the buildings, etc., which cost him $22.41. The commissioner further reported, that the cleared land, not included in the lot 153, was entered by one Allison, under the act of 1850, and by him assigned to the plaintiff, who has perfected his title by grant, at a cost of $22.41. This report has not been objected to by either party. The plaintiff, then, has a complete title to all the land embraced in his contract with the defendant. He now has all he contracted for. Availing himself of the improvements made by the defendant, he has completed his title by paying (491) the necessary expenses. A Court of Equity will not compel a purchaser to take a title substantially defective; but it is the privilege of the vendor to complete it. But if the purchaser does it, he gets all he bargained for, and can ask from the vendor nothing more that the expenses incurred in completing it. Nance v. Elliot,38 N.C. 408, and Westall v. Austin, 40 N.C. 1.
The necessary expenses incurred by the plaintiff in completing his title to the land on which the improvements were made, amount to $44.82. For this amount he is entitled to a credit on the judgment obtained by the defendant.
The injunction is dissolved as to all but the sum of $44.82. The defendant must pay the costs.
Per curiam.
Decree accordingly.
Cited: Van Gilder v. Bullen, 159 N.C. 296.