Latham v. McRorie, 57 N.C. 102, 4 Jones Eq. 102 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 102, 4 Jones Eq. 102

JAMES LATHAM against JOHN McRORIE.

Where the plaintiff claimed that the defendant had purchased a tract of land-at sheriff’s sale, under an agreement that they were to be joint, owners a-it, and the defendant took the sheriff’s deed to himself, proof that the plain, tiff, in the assertion of his right, received the rent for one year from a tenant with the knowledge and approbation of the defendant, was Held to be a fact dehors the deed inconsistent with an absolute purchase to himself, and being corroborated by defendant’s declarations admitting the plaintiff’s equity, was a good ground for relief.

Cause removed, from the Court of Equity of Davie County.

In the year 1847, the defendant bid off, at a sheriff’s sale? three tracts of land, lying in the county of Davie, and having paid the money, to wit, $244, he took from the sheriff, a deed» conveying to him the said several tracts. Afterwards, he re" sold the premises at a profit of about $300. The plaintiff alleges that having met with some loss, by having been the surety of the former owner of the land, one Yeacli, he conceived the purpose of purchasing the land at the sheriff’s sale, and re-selling at a profit, but not having the money to pay for .it, he applied to the defendant, who was a merchant, in Mocks-ville, to borrow the necessary amount; that the defendant refused to lend him the money, but agreed that he would bid off the land, if it should go at less than its value, and let the plaintiff come in as a joint purchaser with him, he advancing the whole of the necessary funds; that a part of this agreement was, that the land should be afterwards re-sold, and that the two should share equally in the profits made on the resale; that this re-sale was in the year 1848, on a credit, the defendant taking the notes of the purchaser’s for the price; that he frequently afterwards, applied to the defendant for his share of the profits, but that defendant always put him off with the declaration that he had not yet collected the money; that finally, upon his urging his claim, in the year 1855, he denied, altogether, the plaintiff’s right to participate in the profits, and insisted on holding the same for his own exclusive use and benefit; whereupon, he immediately brought this suit. The prayer of the bill is for an account of the rents and profits of the land, received by the defendant while he held the lands in question, and for the payment to him of one half of the sums realised upon a re-sale of them.

The defendant, in his answer, totally denies the equity set up by the plaintiff. lie says no such trust or agreement ever was entered into by him ; that he purchased the land for his own exclusive use, and has never recognised the plaintiff’s interest therein in any way, and he insists upon the statute of limitations as a bar to the plaintiff’s claim.

There were commissions and proofs filed in the case. The plaintiff proved by John A. Lefler, that in December, 1848, he purchased one of the tracts of land sold as the property of Thomas Yeach; that when he first applied to McEorie to make the purchase, he referred him to Latham; that he and the latter not being able to agree, as to the price, he, witness, and Latham went to Mocksville together, and there, after a private conference between the plaintiff and defendant, McEorie said to the witness, they found “ they could not afford to take less than $450,” the price which Latham had asked him ; that thereupon he completed the bargain at that price.

J. M. Gabard deposed that some months after the sale, the defendant asked him if he did not want to buy one of the tracts of land bought at Yeach’s sale; that he and Mr. Latham had bought the land to make themselves safe; that they did not want it, and would sell it.

Samuel Rose deposed that between the time of the purchase of the lands by the defendant, and the re-sale of them, he heard the defendant say that he and Mr. Latham had bought the lands jointly^, and that the profits were to be divided equally between them.

Ishmael Williams deposed that shortly after the sheriff’s sale, he applied to the defendant to buy one of the tracts bid off by him, that he told him that he and plaintiff had purchased the Yeach lands to save themselves; that he then applied to the plaintiff for the same purpose, who said that he was interested in the lands, but told him any trade that ho would make with McEorie, would be satisfactory to him; whereupon he returned to the defendant and effected a purchase of one of the tracts.

John MoOullooh states in his deposition, that he was a tenant on one of the tracts of land, and had a growing crop of corn on it, when it was sold by the sheriff; that the plaintiff came to him and told him that he and the defendant had bought the land jointly, and requested him to let him know when the corn would be shucked, so that he might come and get the rent, which was one third of the crop; that he gave him notice, as requested, and the plaintiff received the whole rent, which was a hundred bushels, and that “McEorie never mentioned to him any thing about the rent, from that day to the present.”

Joseph B. Jones testifies that he was present, in 1855, when the plaintiff demanded his share of the profits arising on the re-sale of the land, when the defendant said he had lost by Veach; that he could have the corn that he had already taken, but he should hold on to the proceeds of the land to save himself.

The cause being set down for hearing, on the bill, answer and proofs, was transmitted by consent.

No counsel appeared for the plaintiff in this Court.

Clement, for the defendant.

Battle, J.

The ground upon which the plaintiff places his claim to relief, is the allegation, that by an agreement made between him and the defendant, the latter was to purchase the tracts of land mentioned in the pleadings, on the joint account of himself and the plaintiff, and that upon a re-sale, they were to share equally in the profits or loss. The defendant denies the allegations in the most positive terms; insists that he purchased the lands for himself alone, that he took the sheriff’s deed to himself, and that he re-sold the lands as his own, and for his own benefit. lie insists, also, upon the statute of limitations, and the lapse of time. The plaintiff put in. a replication to the answer, and the parties proceeded to take their proofs. From these, it appears, that if the plaintiff has made good his claim to relief, neither the statute of limitations, nor the lapse will bar it, and consequently, such a bar has not been insisted on in the argument before us. In examining the proofs, we find from the testimony of four witnesses, to wit, Messrs. Rose, Gabard, Belter, and "Williams, that the defendant, at different times, and under circumstances in which they could not well be mistaken, acknowledged that he had purchased the land on the joint account of himself and the plaintiff. The witness McCulloch testifies that during the year, in which the lands were sold by the sheriff, he was cultivating one of the tracts as tenant, and that the plaintiff claimed and took a part of the crop as rent, upon the ground that he was interested in the purchase; and the defendant had never objected to it, nor said any thing to him about it. Mr. Jones, another witness, states that he was present in February or March, 1855, when the plaintiff claimed from the defendant an account of the profits derived from the re-sale of the lands, when the defendant said that the plaintiff might have the corn that he had already taken, but that he, defendant, would hold on to the proceeds of the lands to save himself, as he had lost by Teach, the former owner.

This testimony makes out a case against the defendant so strong, that his counsel allege nothing against it, except that the testimony proves nothing but the declarations of the defendant, and that they alone are not sufficient to convert the deed taken from the sheriff to himself, into one to himself and the plaintiff jointly; and for this position, he relies upon the case of Brown v. Carson, Busb. Eq. Rep. 272, as one directly in point. That case was decided upon the ground that, except the declaration of the defendant, there was no proof of any fact dehors the deed, inconsistent with the idea of an absolute purchase. But the case is no authority for the present, because here, there was a very significant fact, inconsistent with the idea of the defendant’s having purchased for himself alone : the plaintiff claimed and took the rent of one of the tracts of land as a joint purchaser, and the defendant never claimed it himself from the tenant, nor objected to the payment of it to the plaintiff. It is true, that the defendant says in his answer, that he sold this corn to the plaintiff, who promised to pay him for it, but this allegation is not supported by any proof, and is discredited by the testimony of Mr. Jones. This, then, lets in the declaration of the defendant, as corroborating proof, and compels us to declare that the plaintiff is clearly entitled to the relief which he seeks.

Per Curiam, Decree accordingly. ,