Martin v. Martin, 12 N.C. 413, 1 Dev. 413 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 413, 1 Dev. 413

Alexander S. Martin v. Robert Martin.

From Rockingham.

A decree in Equity, directing a Defendant to execute a deed and de liver possession of land, is a breach of a'covenant for quiet enjoyment, and the fact that the decree is founded on notice to him when he purchased, of an equity in the land, does not bar his action.

This was an action brought upon the covenant of quiet enjoyment, contained in a deed of bargain and sale executed fay the Defendant and - another to the Plaintiff, which was as follows ; “ and we the said Robert-Marlin, &c. do warrant unto the said Alexander 8. Martin, his heirs, &c. the aforesaid land, against the claim or claims of any person whatsoever.”

On the tria!, the Plaintiff produced a bill in equity filed by one Thomas Overton, against the. Plaintiff and _ „ , , , , , 0 „ , Deteudant, whereby iie prayed a conveyance ot (he same Jan^ 0„ the ground of a prior contract for the sale of it by the present Defendant to him, upon which he had paid a part of the purchase money : and also a decree in that suit by which be (the Plaintiff) was directed to convey the bargained and sold premises, and give possession thereof to Overton. It appeared from the Plaintiff’s answer to Overton’s bill, and from testimony in this cause, that lie had-full notice of Overton’s equity, when he received the deed, which contained the covenant on which this suit was brought.

The Counsel for the Defendant, requested the Judge to instruct the Jury, that if they believed the Plaintiff had notice of Overton’s equity, when he purchased, he was only entitled to nominal damages. But his Honor Judge Baniei, refused to give these instructions, on the contrary, he informed the Jury that the decree was equivalent to an eviction under a judgment in ejectment, and that the Plaintiff was entitled to a verdict for his purchase money, with interest from the time he surrendered ,the possession, in obedience to the decree.

A verdict being returned according to the charge, the Defendant appealed.

No Counsel appeared for either patry in this Court.

Haii., Judge.

It is true in this case, that the Plaintiff had notice of Overton’s claim to the land; but the Defendant had a much better knowledge of its nature.— It is not very likely, that if the Plaintiff had a full knowledge of the extent of the claim, he would have laid out his money in the purchase. But if the Defendant, with the knowledge he had, thinks proper to sell the land, warrant the title of it, and receive the purchase money, it is then but just, that when the Plaintiff lost the land, in consequence of the Defendant’s having contracted to sell it to Overton, that he should refund the purchase money with interest, as the Judge,, in my opinion, very properly instructed the Jury.

It is true the Defendant conveyed the legal title to the Plaintiff, but he conveyed it subject to Overton’s equity, and the decree, by which he lost it, was tantamount to an eviction by process of law. 1 think the rule for a new trial should' be discharged.

Per Curiam. — Judgment affirmed.