Opinion
(June Term, 1863.)
1. Where a plaintiff has a remedy at law on a covenant of quiet enjoyment, and brings a bill in equity against the covenantor on account of his non-residence in the State, it is necessary for him to aver also, that the defendant has no property or effects in this State, out of which satisfaction could be had upon his recovery at law.
2. Where such a suit is brought, and it appears that the plaintiff, in obtaining his deed and covenant, practiced to get an unfair advantage of the defendant, the court of equity will not grant him relief, but will leave him to his remedy at law.
CAUSE removed from the Court of Equity of CLEVELAND.
The bill alleges, that the plaintiff purchased a tract of land lying in the county of Gaston, and took a deed in fee for two hundred acres, for which he gave his notes for $400; that said deed contained a covenant for quiet enjoyment of that estate; that about eighty acres of the best of this land was covered by the dower of widow Mrs. Mary Falls, and that he had utterly failed to get possession of that much of the land he had purchased; that the defendant is a citizen of the State of Arkansas. He states that he has been sued, at law, on the bonds given for the purchase-money, and that judgment has been obtained against him in the county court of Gaston, and execution threatened to be issued against him for the amount. The prayer is for an injunction.
The defendant, in his answer, says, that being about to remove to the State of Arkansas, he made a public vendue of the land in question, and his other property; that at the time this land was offered for sale, the crier distinctly made known that it was sold subject to the dower of Mrs. Falls; that the land was bid off by the plaintiff, but that no deed was then executed by him, but that he furnished him with the deed, which he, defendant, had taken when he bought the land, and desired him to have a deed prepared; that in the deed, thus furnished, the dower was excepted; that the plaintiff was a relation of Mrs. Falls, and lived near to her, and well knew that she had a dower in the said tract of land; that for fifteen years Mrs. Falls lived on this dower land, and was so living at the time of the sale; that shortly after this auction, the plaintiff came to where he lived, while he was loading his wagons to removed from the State, and when everything was in confusion around him, and presented him for execution, a deed, which he, plaintiff, had prepared, and told him that it was all correct and drawn according to the deed furnished him at the sale as a guide; that having confidence (359) in plaintiff's integrity, and being thus in confusion, he executed the deed, in question, which he now finds, to his surprise, is an absolute conveyance of the whole estate in the land, without any exception of Mrs. Falls' dower, and in this he was grossly deceived and defrauded by the plaintiff.
The defendant further says, that the plaintiff had no occasion to go into a Court of Equity on account of his residence in another State, for that at the time of filing this bill, defendant had property, in this State, to the amount, at least, of $5,000.
There was evidence taken in the cause, the material part of which, is alluded to by the Court and the cause was set down for hearing on the bill, answers, proofs and exhibits, and sent to this Court.
No counsel for the plaintiff.
Fowle, for the defendant.
We have no hesitation in denying to the plaintiff the relief which he seeks. It is clearly proved, that at the time he purchased the tract of land, mentioned in the pleadings, he had full knowledge of the incumbrance of which he complains, and we very much suspect, that when he prepared the deed for an absolute conveyance, he intended, if he could get the bargainor to execute it, to take an unfair advantage of him. His remarks made at various times, to different persons, show that he thought he had got a bargain of the defendant, and that he was determined to make the most of it. If the covenants contained in his deed can avail him at law, let him seek a remedy there. This Court will certainly not aid him in his intended sharp practice.
But independently of his failure upon the merits of his case, the plaintiff has not, by his own bill, shown himself entitled to relief in a court of equity. He has alleged, indeed, in his bill that the defendant is a resident of the State of Arkansas, but he has altogether omitted to aver that he had no property or effects in this State, out of which (360) to make good the damages which might be recovered in an action on the covenant for quiet enjoyment. This omission we deem fatal to his right to come into this Court for relief. See Green v. Campbell, 55 N.C. 477; Richardson v. Williams, 56 N.C. 116.
PER CURIAM. Bill dismissed with costs.