Ennis v. Leach, 36 N.C. 416, 1 Ired. Eq. 416 (1841)

June 1841 · Supreme Court of North Carolina

36 N.C. 416, 1 Ired. Eq. 416

HENRY C. ENNIS vs. JAMES T. LEACH.

The law never compels a trustee, who sells under his trust, to enter in-any covenants in his deed, except a covenant against his own incumbrances.

But it is his duly to procure a good title to be made before he can exact the purchase money, when at the sale he has declared that a good title ■ should be made.

This was a bill filed by the complainant, at Spring Term 1839, of Johnston Court of Equity. The bill alleged, in substance, that, in September or October, 1838, the defendant, James T. Leach, offered at public sale six certain lots in the town of Smithfield — that the same were exposed to sale generally without any exception as to title — and with an understanding on the part of the plaintiff and others, and with an express assurance to the plaintiff individually by the said defendant, that good and indefeasible title would be made to the purchaser in fee simple, with covenants of warranty on the part of the said James T. Leach — that, under this understanding and assurance, the plaintiff bid off the said town lots for the sum of $74 Go, which the plaintiff averred to be the full,value of the said lots — that the plaintiff, before he received any deed for the lots, gave his note for the said sum with security, payable six months alter date, which was according to the terms of the sale — that, afterwards on the same day, the said defendant refused by any deed to warrant the title to the said lots or to redeliver to the plaintiff his said note, but offered to execute a deed, which purported to convey only the interest of John S. Powell in the same, whereas the plaintiff believed John S. Powell had no legal interest therein whatever. And the bill prayed that the said James T. Leach might be decreed to make good and sufficient title to the premises with warranty, or to deliver up the said promissory note to the plaintiff.

The defendant in Ids answer admitted the sale of the lots at public auction, and averred that he sold them merely as a trustee, acting under certain deeds oí trust from John S. Powell, and that he set up and sold only the interest, which John S. Powell had in them. He denied, that he affirmed that a good and indefeasable title in fee simple would be made to the purchaser, or that he had agreed or given any assurance, that he would warrant the title to the property. He also averred that the plaintiff knew the title of John S. Powell, as well as the defendant did. He also averred that he' had tendered to the plaintiff a deed conveying all the interest' of the said Powell, and he was now ready to deliver the same, but had refused and still refused to’ execute a deed, by which the defendant should bind himself in a general covenant of warranty as to the title.

Replicátion was entered to the answer, and depositions taken. It seemed from the proofs, that the defendant said at the sale of the lots, that he would make' a good title to the purchaser. The lots themselves were sold' by the defendant, who, it was well understood, was the trustee of John S. Powell. It also appeared that John S. Powell had previously contracted for the purchase of the lots from the husband of a woman, to whom they belonged, and had paid' the purchase money for them; but he had never received a legal title,as no conveyance had been executed by the wife, with the solemnities required by law for the conveyance of land by' femes covert. The cause was then set for hearing, and at; Spring Term, 1841, transmitted to the Supreme Court.

John H. Bryan for the plaintiff.

No counsel for the defendant in this court.

Daniel, J.

In this case three witnesses prove that the' defendant said,- at the sale of the lots of land, mentioned in the pleadings, that he could make a good title to the purchaser. The plaintiff became the purchaser, and gave his bond for the purchase money. It appears from the exhibits, that there is a defect in the title to the lots; inasmuch as the deed' from Mr. Smith and wife has not attached to it the certificate' of the private examination of Mrs. Smith, taken according-]a\v to pass her interest. We think, that it is the duty of Leach, the vendor, to procure a proper deed to' be executed, which will pass the fee in the said lots of land from Smith and wife. It appears that the defendant sold the lot as a trustee. The law never compels a trustee to enter into any covenants in his deed, except a covenant against his own incumbrances. The demand of the plaintiff, that Leach should execute to him a deed with- a covenant of warranty is, therefore, inadmissible; The decree will be, that the defendant shall, before the loth day of February next, procure a deed to be executed by Smith and wife to the plaintiff, which deed shall be approved by the master, sufficient in law to extinguisbr the title in fee in the said Smith and wife in and to the lots of land mentioned. And the cause will be retained for further directions.

Per Curiam, Decree accordingly.