Buckman v. Bragaw, 192 N.C. 152 (1926)

Sept. 15, 1926 · Supreme Court of North Carolina

192 N.C. 152

J. F. BUCKMAN, Jr., and E. T. BUCKMAN v. S. C. BRAGAW, Trustee et al.

(Filed 15 September, 1926.)

1. Mortgages — Deeds and Conveyances — Foreclosure Sales — Advertisement — Description—Warranty—Fraud.

Where the mortgagee or trustee has in good faith advertised the property foreclosed inaccurately as a certain number of feet frontage along a city street, in the absence of fraud or wilful misrepresentation, etc., the purchaser may not offset the purchase price by the value of a- shortage, in the absence of a warranty by deed of the quantity of land sold, and who has had equal opportunity with the seller under the power in the instrument of having ascertained the exact frontage of the locus in quo.

2. Same — Caveat Emptor.

The doctrine of caveat emptor applies to the sale of lands under foreclosure of a deed of trust.

Civil actioN, before Grady, J., at May Term, 1926, of Beaufoet.

Prior to 15 May, 1920, C. M. Brown was tbe owner and in possession of a certain piece or parcel of land in tbe city of Washington, North Carolina, situated on tbe north side of Main Street and fronting on tbe north side of Main Street a distance of 49 feet. This land adjoined tbe lot of tbe defendant. On 15 May, 1920, Brown and wife executed to tbe defendant, S. C. Bragaw, a deed of trust on said land. Default having-been made in tbe payment of tbe indebtedness described in said deed of trust, tbe said S. C. Bragaw, trustee, advertised and sold said property at public auction under and by virtue of tbe terms of said deed of trust, in September, 1924, at which time and place tbe plaintiffs became tbe last and highest bidders for tbe property for tbe sum of $27,000. Tbe land was advertised by Bragaw, trustee, and described in said advertisement as fronting 49 feet on tbe north side of Main Street. Upon payment of tbe purchase money, Bragaw, trustee, executed to tbe plaintiffs a deed for said property in accordance with tbe description in said deed of trust and said advertisement, and described tbe property as fronting-49 feet on Main Street. After tbe purchase money bad been paid by tbe plaintiffs they discovered that tbe land fronted only 46 feet on Main Street, and thereupon this suit to recover from Bragaw, trustee, tbe sum of $1,653 to cover tbe shortage of three feet in tbe dimensions of tbe lot conveyed. Tbe purchase money bad not been disbursed by tbe trustee and was held by him pending tbe outcome of tbe litigation.

Plaintiff testified that after tbe execution and delivery of deed from Bragaw, trustee, that be measured tbe property and found tbe shortage. There was further testimony to tbe effect that tbe plaintiff bad known this property for twenty-five years or more.

At tbe conclusion of plaintiff’s evidence tbe trial judge entered judgment of nonsuit, from which tbe plaintiffs appealed.

H. G. Garter for plaintiffs.

Small, MacLean & Rodman and Ward <& Grimes for defendants.

BeosdeN, J.

It was conceded that tbe plaintiffs cannot recover upon a breach of warranty.

Tbe question therefore presented for solution is whether or not a purchaser at a trustee’s sale of land under a deed of trust or a mortgage, can recover for a shortage of land in the absence of any representation made by the seller except such as may be contained in the advertisement or the deed of the trustee or mortgagee.

In Smathers v. Gilmer, 126 N. C., p. 759, the principles of law governing such eases are thus expressed: “The plaintiff had two opportunities for protection: 1. A simple calculation, according to the definite boundaries, courses and distances. 2. To require proper covenants in his deed for his protection.

Failing to avail himself of those means, he purchased at his own risk and subject to the principle of caveat emptor. When each party has equal means of information that principle applies, and the injured party is without remedy. If, however, false representations are made, on which the other party may reasonably rely, they constitute a material inducement to the contract, and the injured party has acted with ordinary prudence, courts of justice will afford relief. Ordinarily, the maxim of caveat emptor applies equally to sales of real and personal property, and will be adhered to where there is no fraud.”

The lot of land in controversy was not sold by the foot or by the acre, and there can be, under the law of this State, no recovery for a shortage under such circumstances in the absence of any representation of fraud. Turner v. Vann, 171 N. C., 127; Galloway v. Goolsby, 176 N. C., 635; Duffy v. Phipps, 180 N. C., 313; Lantz v. Howell, 181 N. C., 401. The judgment must be

Affirmed.