Summary
In Turner v. King, 37 N.C. 132, the defendant verbally agreed with the plaintiff to buy in his lands, about to be sold under execution, and allow him to redeem on repayment of (606) the purchase money; and this being known to the bidders, two of them desisted, and the defendant bought for $190 lands worth $450.
Summary of this case from Sandlin v. KearneyOpinion
(June Term, 1842.)
Where it appeared to the satisfaction of the court that at a sale of the plaintiff's land by execution the defendant agreed to purchase the land, and that the plaintiff might redeem it by paying the purchase money and interest, and in consequence of this agreement bidders were deterred from bidding, and the land was sold greatly below its value: Held, that the plaintiff had a right to redeem by paying the defendant the purchase money and interest, and also such other sums as he might owe him on a general account.
THIS was an injunction bill, returnable to September Term, 1842, of JONES Court of Equity. At the coming in of the defendant's answer the injunction was dissolved, and the bill was retained as an original bill. After various orders and the taking of testimony, the cause was set for hearing at Spring Term, 1842, and then ordered, by consent of the parties, to be transmitted to the Supreme Court.
The facts set forth in the pleadings and those established by the proofs will be found in the opinion delivered in this Court.
John H. Bryan for plaintiff.
No counsel for defendant in this Court.
The plaintiff in his bill states that he was seized (133) in fee of two tracts of land; that writs of execution were issued against his property by his creditors; that one of the tracts was exposed to sale in 1818 and the other in 1819; that there was an express agreement and understanding between him and the defendant that the defendant should act as his friend in bidding off the said tracts of land, and that he would bid them off for the plaintiff, and not for himself, and that he was not to keep or claim the same, but upon the plaintiff's paying the said sums with interest the defendant was to claim no further interest therein; that the said agreement was known to the people at the sale, and competition was thereby stifled; that the defendant purchased the two tracts of land for $190, a sum far below the value of the lands. The plaintiff says that he has in various ways paid this sum and all other debts and demands which the defendant had on him; that notwithstanding, the defendant obtained a deed from the sheriff and has brought an action of ejectment to turn him out of possession. The bill prays for an injunction and for general relief.
The defendant in his answer admits that he purchased at sheriff's sale the two tracts of land mentioned in the bill, and has taken a deed, and has brought an action of ejectment. But he denies that he made any agreement with the plaintiff to purchase the land for his benefit, or to suffer him to redeem on paying the purchase money with interest or upon any other terms. The defendant denies that the plaintiff has paid or that he (the defendant) has received payment and satisfaction for the purchase money and other just claims which he then held against him. The defendant says that the plaintiff is still largely indebted to him for moneys advanced before the sale of the land. The defendant has been permitted to put in a supplemental answer, and in it he states that the equity of redemption of the plaintiff (if he had any) has been sold by the sheriff under execution, and that he (the defendant) became the purchaser for the purpose of putting an end to this suit in equity, and not because he admitted or believed that the plaintiff had an equity of redemption in the lands.
There was a replication to the answer. (134)
As to the matter stated in the supplemental answer, it is unnecessary to inquire what would be the effect thereof if established, because the defendant has exhibited no proof to sustain it. Secondly, as to the agreement stated in the bill, that the defendant was to purchase the lands and let the plaintiff redeem, it is proved to the satisfaction of this Court by the deposition of many witnesses that the purchase was made for the benefit of the plaintiff, and that he was to redeem on repaying the purchase money and interest and also any balance that might be due the defendant on a settlement of their accounts. On this agreement being made known to the people attending the sale, two persons — Jarman and Harrison — desisted from bidding for the land, and the defendant was permitted to purchase lands worth $450 for the small sum of $199.20. The case made by the bill and that established by the proofs varies in nothing but in the amount of money the plaintiff was to pay to redeem. The attempt in the defendant to set up an irredeemable title after the agreement he entered into is such a fraud as this Court will relieve against. We think, and so declare, that the plaintiff is entitled to redeem on repaying the purchase money with interest and any balance remaining due on a general account to be taken.
Decree for the plaintiff that the defendant account, etc.
PER CURIAM.
Cited: Rich v. Marsh, 39 N.C. 398; Vannoy v. Martin, 41 N.C. 172; Mulholland v. York, 82 N.C. 513, 514; Shields v. Whitaker, ib., 521.
(135)