Opinion
13752
January 10, 1934.
Before TOWNSEND, J., Chesterfield, October, 1931. Affirmed.
Action by the Atlantic Joint-Stock Land Bank of Raleigh, N.C., against George W. Gregory and another. From a judgment in favor of the plaintiff, the defendants appeal.
The following are the decrees of Judge Townsend directed to be reported:
This case came on to be heard before me on exceptions to the master's report. After consideration of all the evidence, I find that it fails to prove neither fraud on the part of the plaintiff or its agents nor such material mistake as to location or boundaries as would sustain any of the defenses set up by the defendants. The contract of sale was made upon the basis of a plat exhibited at the time, and the parties had equal opportunity to ascertain the boundaries and locate the lands therein described. See Mobley v. Quattlebaum, 101 S.C. 235, 85 S.E., 585.
For these reasons, the exceptions to the Master's report are sustained; the defenses set up in the answers are found to be unsustained by the evidence; and it is adjudged that the plaintiff is entitled to judgment against the defendants for the amount of debt evidenced by these notes mentioned in the complaint, with interest and attorney's fees as therein stipulated, and that the plaintiff have leave to prepare and submit a formal decree for the foreclosure of the mortgage mentioned in the complaint and the sale of the mortgaged premises.
W.H. TOWNSEND, Dec. 19, 1932. Presiding Judge.
This is an action upon three notes, and for the foreclosure of three mortgages, made by the defendants in favor of the plaintiff. The three notes together evidence the purchase price, less a cash payment of $100.00, of a tract of land sold by the plaintiff to the defendants, and the three mortgages are successive purchase-money liens covering the same tract of land, and respectively securing the three notes.
The complaint is in the usual form, containing three causes of action, and praying judgment on the notes, and the foreclosure of the mortgages, and the sale of the lands.
In their answer, the defendants admit the execution of the notes and mortgages, but deny that they are indebted to the plaintiff, and they attack the validity of the whole transaction on the ground, as set forth in the answer, that, prior to the purchase in question, the agents of the plaintiff went upon the lands with the defendant George W. Gregory, "and pointed out and represented to said defendant the lands to be conveyed under the contract of purchase; that said agent represented to this defendant that a certain tract of land containing about one hundred (100) acres was included within the lands to be conveyed; that this tract of land had valuable timber thereon and was the vital and controlling consideration and inducement for the purchase of said lands by the defendants"; and it is alleged that said one hundred acres were not included in the conveyance.
There are two special defenses in the answer, but for all practical purposes the quoted language above set forth seems to represent the position of the defendants; in one of the special defenses this position is relied upon, apparently, independently of any question of fraud, and primarily from the standpoint of consideration; in the second special defense the same defense is relied upon from the standpoint of fraudulent misrepresentations on the part of plaintiff's agent.
The prayer of relief demands the return of the $100.00 paid on account of the purchase price; an adjudication that the title to the lands is in the plaintiff and not in the defendants; and that the notes and mortgages be ordered canceled and surrendered to the defendants.
By agreement the case was referred to Hon. J.E. Leppard, as Master for Chesterfield County, to take the testimony, and to report his conclusions of law and fact thereon.
The Master's report sustains the contentions of the defendants, and recommends that a decree be granted declaring the conveyance from the plaintiff to the defendants null and void; that the three notes and mortgages given by the defendants to the plaintiff be declared null and void; and that the defendants have judgment against the plaintiff for the sum of $100.00, which they paid in cash on the purchase price of the mortgaged property, as well as judgment for the costs of the action.
The case comes before me on exceptions on the part of the plaintiff to the Master's report. These exceptions challenge both the findings of fact and the conclusions of law as reported by the Master. In effect, these exceptions make the issue that the land conveyed by the plaintiff to the defendants, and mortgaged by the latter to the plaintiff, was all of the land, and was the same land which the defendants intended to buy, and that, if there is any question about the correctness of this conclusion, then the fact is that, at the time of the consummation of the purchase, the defendants had all of the information, including a plat of the property, which the representatives of the plaintiff who handled the transaction had, and that therefore the defendants are not entitled to set up any mistake or misapprehension on their part as to the inclusion in their purchase of the additional tract of land referred to in the answer.
The further point is made by the plaintiff's exceptions that, if the defendants were misled, or if they acted under a misapprehension, they exercised acts of ownership over the property following their discovery of the fact that the additional tract of land described in the answer was not included in their purchase, and that therefore they should be taken to have waived any right of rescission which they may otherwise have had.
The testimony is somewhat voluminous, but I have considered it very carefully, in the light of the oral arguments of counsel made before me at Chesterfield, and of the printed arguments filed by them, and in a memorandum decree which I have already signed I have expressed the conclusion that the defendants have failed to make out the defense set up in their answer. It would serve no purpose to review the testimony in detail, and it will suffice to say that a careful consideration of the whole record convinces me that there was no fraud on the part of the plaintiff, and no mistake on the part of the defendants that can be attributed to the plaintiff, such as would warrant the exercise by this Court of its power to rescind the whole transaction.
For the above reasons, I have already stated in my memorandum decree that the exceptions to the Master's report are sustained, and that the plaintiff is entitled to judgment against the defendants on the notes, and to a decree for the foreclosure of the mortgages, as described in the complaint.
It appears from the record that the lis pendens herein was duly filed in the office of the Clerk of Court of Chesterfield County on the 30th day of September, 1931; that the summons and complaint were duly filed in said clerk's office on the 9th day of October, 1931; that the summons and complaint were duly served upon each of the defendants, and that by virtue of such service and of their joint answer they are properly before the Court.
I further find that all of the allegations of the complaint are true, and that the defendants are indebted to the plaintiff on the three notes described in the complaint, in the aggregate amount of $11,668.83, said amount covering the principal sum due on the said notes, together with interest thereon to December 28, 1932, inclusive, and that the plaintiff is entitled to judgment for the said sum, with interest there on at 7 per cent. per annum to the date of payment, and an attorney's fee in the amount of $500.00.
It is therefore adjudged and decreed:
(1) That the aforementioned exceptions to the Master's report be, and the same hereby are, sustained.
(2) That the plaintiff, Atlantic Joint Stock Land Bank of Raleigh, have judgment against the defendants, George W. Gregory and Harriett V. Gregory, for the sum of $11,668.83, including principal and interest to December 28, 1932, together with an attorney's fee of $500.00, amounting in the aggregate to the sum of $12,168.83, together with the costs and expenses of this action, and that judgment be forthwith entered, which said judgment shall and is hereby made to constitute a first lien upon the premises hereinafter described.
(3) That the aforesaid mortgage of the plaintiff be foreclosed; that the mortgaged premises be sold by the Master of Chesterfield County.
Messrs. P.A. Murray and E.D. Blakeney, for appellants, cite: As to mutual mistake: 21 S.C. 226; 53 Am. Rep., 669; 92 S.C. 384; 27 R.C.L., 375. Due diligence after discovery of fraud: 52 S.C. 244; 29 S.E., 665.
Messrs. Samuel Want and Melvin Hyman, for respondent, cite: As to witness equally available to both parties and not called by either: 10 R.C.L., 886; 156 S.C. 181; 153 S.E., 133; 28 A.L.R., 1030; 36 F.2d 899; 287 F., 958; 22 C.J., 119; 124 S.E., 114.
January 10, 1934. The opinion of the Court was delivered by
The basis of the litigation involved in this appeal is set out with sufficient clearness and detail in the two decrees of Judge Townsend. It seems to this Court that the cardinal difficulty in the way of the contention of the defendants that they did not receive the lands pointed out to them is that they set up in their answer that the land which they purchased was to include a tract of 100 acres, which was pointed out to them, but which was not included in the deed of conveyance to them. Nowhere in the evidence is it shown that the vendors owned a tract of 100 acres adjoining or lying near the tract of 2,027 acres shown on the plat, and conveyed to defendants. Adjoining it is a tract of 200 acres known as the Beattie tract (shown on the plat), but which the plaintiff does not own. Beyond the Beattie tract, and not shown on the plat, is a tract of 220 acres known as the Mears or Myers tract — which it is now contended by the defendant George W. Gregory is the tract shown to him and which was to be included in his purchase. We agree with the Circuit Judge that the evidence falls short of sustaining his contention. The Court is satisfied with the conclusions reached by the Circuit Judge.
Let his two decrees be reported, omitting the directions for the manner of the sale and the description of the lands.
The exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.