Wilkins v. Hogue, 55 N.C. 479, 2 Jones Eq. 479 (1856)

Aug. 1856 · Supreme Court of North Carolina

55 N.C. 479, 2 Jones Eq. 479

SARAH WILKINS AND ANOTHER against THOMAS F. HOGUE AND ANOTHER, ADM’RS.

Where the buyer of a tract of land has a full and complete remedy on a covenant of quiet enjoyment contained in the deed he has received, he cannot sustain a bill in a Court of Equity to enjoin the collection of the purchase-money, for a deficiency in the title to the land.

Appeal from an interlocutory order of the Court of Equity of Cleaveland County, Judge Bailey presiding.

The plaintiff Sarah purchased a tract of land from the defendants’ intestate, David Hamrick, which is described by metes and bounds, particularly set out; and the quantity is stated in said deed at one hundred and fifty acres ; the price of which was five hundred and twenty-five dollars ; of which sum one hundred and twenty-five dollars was paid at the conclusion of the bargain; and, for the remainder'of the purchase-money, $400, she executed her bond, with C. P. Wilkins as her surety, payable one day after date; of which she paid the further sum of $240. The deed executed by defendants’ intestate contained the usual covenant of quiet enjoyment.

The plaintiffs, in their bill, allege that the boundaries, as set forth, include only one hundred and forty acres, and of this quantity, thirty-six acres are covered by an older and better title, under a grant issued to Logan Weir, and now owned by one George Martin; that the said thirty-six acres are of excellent quality, and formed her chief inducement to make the trade, the rest of the land being considerably worn, and much of it old fields. She alleges, that at the time she took the deed from the defendants’ intestate, and at the time she paid the several sums mentioned, she was entirely ignorant of this deficiency in the quantity; and that having discovered it, she has refused to take possession of the land, and offered to reconvey to the defendants. The bill further alleges that suit has been brought, for the remainder of the bond, against her and her surety, in the Superior Court of Cleave-land, and that the defendants threaten to enforce, by execution, the collection of the amount due, when they shall have recovered their j udgment.

The prayer of the bill is for an inj unction to restrain the defendants from taking out execution upon their judgment at law, and that they shall discharge the same, and account to the plaintiff Sarah, for the value of the thirty-six acres ; also for general relief.

The defendants, who are the administrators of David Ham-rick, say, that the estate of their intestate is amply good for any amount which might be assessed against them as damages for a breach of the covenant of quiet enjoyment, which is contained in the plaintiffs’ deed ; and having a full and perfect remedy at law, they submit whether they should be put to answer this complaint in a Court of Equity. Having no personal knowledge of the facts set out in the plaintiffs’ bill, they neither admit no'r deny them ; but if the same should become necessary, thejr insist on holding the plaintiffs to proof of their allegations.

An injunction having been issued, according to the prayer of the bill, on the coming in of the answer a motion was made to dissolve it, and on argument, before Bailey, Judge, the motion was refused, and the injunction was continued; from which order the defendant appealed.

Gruion, for plaintiffs.

JLo7ce;.im- defendants.

Battle, J.

The order from which the appeal was taken is, in our opinion^ erroneous. The injunction was granted improvidently, and ought, therefore, to have been dissolved upon the motion of the defendants. The plaintiffs took a deed for the land in question, which described it by metes and bounds, and she relied upon the covenant of warranty for the security of the title. She alleges, indeed, that there is a defect in the title to a part of the land, but does not pretend to state that the.covenant for qpiet enjoyment has been broken by her eviction from it by a person claiming under a paramount title. She lias also failed to state that the defend ants are not able to make good any damage which she may sustain in the event of her eviction.

From all that appears, then, she has a complete and full remedy at law for any and every wrong which which she is likely to sustain, by reason of the breach of the covenant contained in. the deed, of the defendants’ intestate and she had, therefore, no cause-for coming into this- Court for relief. See Merrit v. Hunt, 4 Ire. Eq. 406.

The- order to continue the injunction must be^ dissolved, and this opinion must be-duly certified*.to> the Court below as the law directs.

Pee CubiaM.. Decree below, reversed.