Rich v. Marsh, 39 N.C. 396, 4 Ired. Eq. 396 (1846)

Dec. 1846 · Supreme Court of North Carolina

39 N.C. 396, 4 Ired. Eq. 396

EZEKIEL RICH vs. ALFRED H. MARSH & AL.

Á suppression of competition' at an execution sale by the representatives of’ the defendant, that he was buying for the plaintiff, by means of which he purchased the land of a distressed man for a very inadequate price, will' authorize a decree for the plaintiff, on a bill to redeem the land on paying Che sum for which it was sold, on the ground of an undue advantage taken' of Ins necessities, and a fraud practised1 in getting the title in that way, and then claiming-it for his own benefit.

The cases of Neely v. Torian, 1 Dev. and Bat. 440, and Turner v. King, 2 Ired. Eq. 132, cited and approved.

The bill is for the redemption and reconveyance of a; tract of land. In l’S'37 there were several judgments and’ executions against the plaintiff, under which the premises were about to he sold ;; and he applied to the defendants' Davis, to lend him money to' discharge them, and take a deed of trust to secure the same. But Davis declined doing so, as he states in the answer, because he feared the incumbrances of" other' judgments ; and they e'ame to another'agreement :• which Was, “that'this defendant (fie not having the' rbady m'oney)'should borrow money and bid off the land at the sheriff’s sale, and take the conveyance to himself, and that the plaintiff might redeem the land upon re-paying the'purchase money, by the time the borrowed' money became due.” The answer further states, that Davis borrowed the money in November 1837', and agreed to re-pay it and did re-payit in September following. The land is charged in the bill and proved to have been worth about $400 ; but Davis purchased it at the Sheriff’s sale for $36, and took a deed. At the sale several persons were present with the intention of bidding for the land, but were prevented from doing so by Davis, who informed them that he had agreed to buy it for the benefit of the plaintiff, and allow him to redeem it. After the sale, the plaintiff continued to occupy the land and Davis took annually from him a note for about $5, for' the rent, as he states, of the land ; but a witness states it to have been for the interest of the sum advanced and the taxes on the land, which Davis paid. In 1842, Davis executed a deed of trust for the land and other property to the defendant Elliott to secure a debt he owed the defendant Marsh, and in 1343 the land was offered at public sale under the deed of trust by the defendant Marsh, acting as the agent of the trustee, Elliott, and was bid off by Marsh. At that time the plaintiff was still living on the land, and, when it was put up for sale, he forbid the sale and claimed the land.

No counsel for the plaintiff.

Winston, for the defendant.

Ruffin, C. J.

The plaintiff is clearly entitled to the relief he seeks. Independent of the express agreement for redemption, and the right to have that executed upon the admission of it in the answer, the suppression of competition at the sale by the representations of Davis, that he was buying for the plaintiff, by means of which he purchased the land of a distressed man for $36, which was worth $400 or more, would authorize a decree for the plaintiff upon the ground of an undue advantage taken of his necessities and a fraud practiced in getting the title in that way and claiming it for his .own benefit. This has been already decided in several eases. Neely v. Torian, 1 Dev. & Bat. Eq. 410. Turner v. King, 2 Ired. Eq. 132. To such cases the statute of frauds, 1819, has no application; for, besides the agreement for redemption, there is the additional circumstance of the suppression of competition at the sale, and it is a fraud to-bring that about or to take advantage of it under those circumstances. However, in the present case there can be no doubt of the agreement for redemption, as the-answer explicitly admits it. It is said, indeed, in the argument, that it was an agreement for redemption by a particular day, so as in effect to be an agreement for a conditional sale; and that it was lost for non-performance at the day. But the law is clearly otherwise.

There cannot be a doubt, that Davis was to take the legal title as a security for the money advanced; so that in fact, to use the word in the answer, it was intended-,, that the plaintiff might “ redeem” the land ; and when the agreement is for redemption, it confers the right to it with all its incidents as to time and circumstances.

The decree must be against the defendants Elliott and Marsh as well as Davis; for there is nothing to protect them. They were not purchasers for value and without notice. Elliott gave nothing for the land ; indeed, the conveyance was taken to him without his knowledge by Marsh, as a security for a previous debt to himself. And it was necessary to make Elliott a part}-, as it does not appear that he had conveyed to Marsh under his purchase at the sale made for the trustee. Besides, the plaintiff was living on the land at the time, and that was notice of his title, because it made it the duty of the other parties to make the enquiry of him. And that was not all, but he gave express notice of his claim, when the land was offered under the deed of trust.

It must be declared, therefore, that the plaintiff is entitled to redeem upon payment of the sum advanced by Davis and the interest thereon, or the balance due therefor ; and it must be referred to the Clerk, to take the usual accounts, and state the balance due on either side, as upon the foot of a mortgage of the premises from the plaintiff to the defendant Davis.

Per Curiam.

Decreed accordingly.