The deed which the plaintiff executed has not been exhibited by either party, so that the Court cannot declare how it operates, whether as a conveyance of the fee or of an estate for the life of the defendant. Supposing it to be the former, the Court is of opinion that the plaintiff would be entitled, without any further act on his part, to a decree for the *Page 342 balance of the purchase money according to the contract, and interest from 25 December, 1836, subject to proper deductions for the repairs not made and for the waste committed, if any. As to the repairs, there is evidence prima facie to raise a claim for some deduction; and as to waste, there is evidence sufficient to direct an inquiry. But, in conducting that inquiry, (464) it is proper the master should have the benefit of the Court's instruction upon a point which might be raised on the evidence. On the part of the defendant it seems to be supposed that he may claim a deduction for all the sales of wood by the plaintiff during that year, without regard to the purpose for which it was cut; while the plaintiff insists that he is not liable at all, because the wood sold by him was cut from his new-ground, or land then cleared for cultivation. We think the true rule is between them. A vendor cannot cut timber for sale, after the contract, unless the privilege be reserved. On the other hand, if a vendor is to retain possession of land, used for purposes of agriculture, for another year, it must be assumed that he is to use the tract for cultivation as a judicious owner would himself do or would allow a tenant to do, and, therefore, if, according to the state of the property, the proportion of wood and cleared land and the course of crops or usages of agriculture in the particular part of the country, it would be prudent and proper to clear the land from which the wood was cut, we should hold that the wood cut in that way might be sold by the vendor. It may be for the benefit of the vendee to open the land and prepare it for cultivation, and, at any rate, it is one of the reasonable advantages reserved by the vendor in retaining the use for a period, and the sale of the wood as a part of the fruit of his labor employed in a reasonable use of the land. It stands, we think, much upon the same ground with the rule laid down respecting waste, as between a tenant for life and the remainderman, in Shine v. Wilcox, 21 N.C. 631. With those exceptions the plaintiff would be entitled to have the principal and interest due him computed, and an immediate decree therefor, provided he has conveyed in fee. For that position the reasons will be stated. A court of equity is always inclined to see that a vendee gets a good title, and will not compel him to accept one that is even doubtful, though protected by covenants from the vendor, unless he has agreed to take the title at his own risk, or by his conduct satisfies the court that he intentionally renounces (465) his right to the judgment of the court upon the title, and for some reason of his own chooses to take a conveyance without examination of the title. Of course, an agreement that the title is at the risk of the purchaser stands upon its own *Page 343 obligation and needs no explanation. What may or shall amount to such a renunciation or waiver requires, perhaps, some observations in order that the opinion of the Court may be perfectly comprehended. Generally speaking, one would expect a purchaser, before he did anything in execution of a contract, to satisfy himself, in the first place, that the title he would get would be such as he had contracted for; and, therefore, when he takes steps under the contract, such as the payment of the price and entering into possession, a presumption arises either that he is satisfied as to the title or with the covenants he is to get for it. Hence, in a number of cases it has been held that if a purchaser take and remain in possession a considerable time after the abstract is delivered to him, making no objection to the title, he waives his right to an examination of the title, and, at the instance of the vendor, a specific performance will be decreed at once, without a reference as to the title. Fleetwood v. Green, 15 Ves., 594; Margravine of Anspach v. Noel, 1 Mad., 310. It is true that this matter of waiver is not a conclusion of law from any particular incident, but it is a conclusion of fact, deducible from all the acts of the parties, as evidence of the intention of the purchaser in acting as he did. Hence, nothing can be inferred from taking possession, if it be agreed that it shall not be deemed a waiver of objections to the title. So possession taken, by the agreement, at the time of entering into the contract of purchase has been held to argue nothing on this point, because one cannot be supposed to give up defects of title, of which he had and would have no means of information, until he should get the abstract. Kirtland v. Pounsett, 2 Taunt., 145; Stevensv. Guffy, 3 Russ., 171. But in Burnett v. Brown, 1 Jac. Walk., 168, a purchaser, after the delivery of the abstract, which disclosed a reservation of the right of sporting not before communicated to him, entered into possession and paid (466) the greater part of the purchase money without objecting to the reservation, and he was considered as having waived the objection, though he afterwards took it, and he was compelled to performance without a reference and without compensation, though the seller's solicitor had, without authority, promised reasonable compensation when the vendee made known his claim for it. The cases which have been stated arose upon articles on bills for specific performance, and if in those cases it was decreed without deciding the purchaser's objections to the title or even hearing them, much more is the Court obliged to hold the defendant bound by his conduct in this case. He did not enter into possession as soon as the bargain was made, and without the opportunity of making surveys and examinations of the *Page 344 title. He had more than a year to satisfy himself on those points, and then, without taking any step to ascertain whether a good title could be made to any part of the land, or whether the boundaries of the seller's conveyances would cover all the land shown to him upon the treaty, he, at the time appointed, sought to be admitted and was admitted into possession upon the payment of part of the purchase money, promising payment of the residue as soon as he could. He afterwards made further payments — in all, more than half of the purchase money — and has remained in the enjoyment of the estate ever since, and as far as he states or as appears to the Court, made no objection to the title or to the parcels until they were stated in his answer in this cause. He made no application to the plaintiff to rescind the contract or to allow a compensation in respect of any deficiency in the premises sold or represented to be sold. The case, thus viewed, is fully within the adjudications cited. For, if from any acts could be deduced a waiver of objections, these afford a satisfactory ground of inference and conviction. But this case is much stronger than any of those cited, in that, two months after possession taken and after the defendant had actual and exact knowledge of every objection he has been able since to raise, he made his second payment and took a deed as in (467) execution of the contract. Under such circumstances we must hold that everything was waived but such remedy as the covenants of the deed would give, or for such matters as would not be within the deed, namely, the repairs or waste. Clanton v.Burgess, 17 N.C. 13. But such waiver, as a fact, is not left merely to inference from other facts.
The answer explicitly states that the defendant did not rescind the contract on account of his own convenience, although he was aware of the objections, and knew, therefore, that he could not be compelled to go on. But he chose to do so, and accepted a conveyance for the land, as the plaintiff said he had sold it to him, and gives as his reason, besides the convenience of having a residence, that the deed had the clause of release of the purchase money, of which he meant to pay no more, as he thought the sum he had paid an ample price. Such a declaration surely puts an end to all claim of the defendant to favor, or an inclination of a court of justice to relieve him from a full compliance with the contract on his part. The plain meaning of it is that because the plaintiff, as he conceived, had got a good bargain out of him, or, if he will, had taken some advantage of him, he (the defendant) was justified in getting any advantage he could over the other party, whereby he would not merely be relieved from the contract, or be justly compensated for deficiencies *Page 345 as estimated by an impartial tribunal of the country, but would get clear of the payment of a large part of the purchase money, and at the same time hold the land sold, or said by the other party to have been sold to him. For the sake of overreaching the vendor in the point of the purchase money, he made up his mind to take the deed as it was, for the land as described in it, and for the title which the seller could make, and he cannot afterwards, when equity deprives him of the release, say he did not get a good title. The plaintiff is not asking a decree for specific performance. He alleges that he has performed, and the defendant cannot deny that he gave the plaintiff reason to suppose that he was satisfied with his performance. The plaintiff asks only that a release obtained from him by surprise, expressing the payment of money which never had (468) been paid, should not conclude him, but that the defendant should pay him the money thus expressed to have been paid. The defendant now admits the surprise, that the money was not paid, and that he accepted the deed for the sake of the release, and thereby got the land conveyed without paying the money he contracted to pay, and when the other thought him still bound for it. It would seem that in such a case the only decree should be to declare the release to have been obtained by surprise, and that, notwithstanding the same, the money should be paid. The title cannot be gone into, for, having accepted it, however unworthy the motive, the defendant cannot retract his acceptance and now raise objections in which he before acquiesced. We have, therefore, not thought it necessary to look into the evidence upon the question of boundary or of the representations made by the plaintiff at the time of the contract. We are satisfied that all parties understood the Virginia line to be the northern boundary of the land, but we think it far from clear that the plaintiff represented that line to run at any particular place, or, if he had so represented it, that it would not in fact include the spring spoken of and the land to the north of the house. But in considering the equity of the plaintiff's case we assume that the allegations of the answer as to the title are true, and hold that, nevertheless, the defendant cannot in this way take advantage of defects that, with a perfect knowledge of them and with a view to his advantage therein, he once, with his eyes open, waived. This case has been thus far treated as if the deed were for the fee. It is said in the answer to be only for life, and it may be so, though we can perceive no reason why the defendant has not shown it to us, that it might be seen what it is. But should the answer give its true character, it would not affect the plaintiff's right to a decree for the residue of the *Page 346 purchase money, but would only call for a decree that he should first execute another deed for the land, as described in the deed already executed, in fee simple, to be approved by the master. We presume that deed calls for the State line as the northern (469) boundary, or, at all events, that it sets out the boundaries correctly and satisfactorily to the defendant, since he accepted it, and the objection in the answer is not that the boundaries are not therein described as they were represented, but that they do not cover all the land it was represented they did. Therefore, the only defect in the deed is the mistake in the estate, which was a mere mistake of both parties. But as evidence of the defendant's waiver of objections to the title, a deed of the one kind is as strong as the other would be, taking the one made to have been so made by mistake, which the answer does not question. Still the plaintiff ought to be required to make another deed, such as he admits he was bound to execute, and says he had executed, in the same manner as he would be required to do if this were a bill for specific performance and it were decreed without a reference as to the title.
Therefore, if the defendant chooses, he may have a reference to the master to inquire whether the deed made to him does convey the fee simple, and, if not, to inquire and settle a proper one for that purpose for the same land. And there must be a reference to state the sum due the plaintiff in the premises, and what deductions are to be made therefrom, if any, by way of compensation for the repairs not made by the plaintiff according to the contract, and for waste in the improper cutting of timber or wood, and selling the same from the land by the plaintiff after the sale by him.
PER CURIAM. Decreed accordingly.
Cited: Mendenhall v. Parish, 53 N.C. 106; Faw v. Whittington,72 N.C. 323; Mayer v. Adrian, 77 N.C. 94; Huges v. McNider,90 N.C. 253; Jones v. Britton, 102 N.C. 186, 187; Bank v. Loughran,122 N.C. 671. *Page 347
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