McNeill v. . Fuller , 121 N.C. 209 ( 1897 )

This is an action for specific performance, in the nature of a foreclosure. The plaintiff alleges that he is the administrator of one Fenner Fuller, deceased, and as such administrator he procured an order of court, sold the land in controversy to pay debts of his intestate; that at said sale Marion Stephens became the purchaser, at the price of $260; that he did not get Stephens to bid off the property for him, but he asked Stephens to attend to the sale and make the property bring its value, and that he told Stephens if he did not have the money to pay for the land that he would get the money for him; that soon after the sale and on 9 March, 1884, he made Stephens a deed for the land, and (211) on the 12th, three days thereafter, Stephens made him back a deed for the same land; that in this transaction there was no money passed, Stephens paid him nothing and plaintiff paid Stephens nothing.

It was argued here for the plaintiff that this land was not purchased for him by Stephens; but taking these facts as shown by his own testimony, the court might well have instructed the jury that it was purchased by the plaintiff through his agent, Stephens.

We have never been called upon to consider a more carelessly managed estate by an administrator, nor a more defective proceeding to sell real estate. We are satisfied from an examination of the records offered in evidence that there never was any summons, petition or complaint, nor order of court to authorize the plaintiff to sell this land. We are satisfied that the only thing the plaintiff ever did, looking to a sale of the real estate of his intestate, is contained in a statement made in his report of the sale of the personal property, in which it is stated that the personal property was insufficient to pay intestate's debts, and that he died seized and possessed of this and some other real estate, and "that the widows and heirs are desirous to have the remainder of the real estate sold to make assets to pay the indebtedness of the estate." This is made after stating that the widow claimed the home place as her dower.

This might be treated as a very informal complaint, but sufficient to sustain a sale, properly and honestly made, if there had been proper parties made and an order of sale. But none of this was ever done. The heirs at law of Fenner Fuller were never made parties. No summons was ever issued, bringing them into court, and no order of sale was ever made. We are satisfied of this. Therefore, the Court must treat this pretended sale of the plaintiff, at which he in law became the (212) purchaser, as a nullity and as passing no title. If the case ended here, the judgment of the court below would be affirmed.

But on 12 March, 1884, Marion Stephens makes a deed to the plaintiff conveying this land to him in fee simple, and this deed has been probated and registered. The plaintiff testifies that the defendants rented this property from him and were his tenants, and on 7 April, 1885, they made a contract with him for the purchase of said land; that at that time they executed to him their notes for $150 each, and he executed a bond to make them a title on the payment of these notes, they being for the amount of the agreed price they were to pay him for the land. He also alleges and swears that said notes have never been paid, and that he is ready and able to make such title upon the payment of the purchase money.

The deed from Stephens to the plaintiff was color of title, without reference to the want of authority of plaintiff to sell to Stephens; and the possession of the defendants, first as his tenants and then under a contract to purchase, was the possession of plaintiff. The possession of a vendee, holding under a bond for title, is the possession of the vendor.Bradsher v. Hightower, 118 N.C. 399. This possession having commenced in the spring of 1884, and continuing until now, ripened the colorable title from Stephens into a perfect title in the plaintiff, unless there are parties interested in the land who are under disabilities. There seems to have been two of the children of Fenner Fuller who were minors in 1884. But the youngest of them is 26 years old now, having been 13 in 1884.

A purchaser is not bound to take a defective title from his bargainor, nor is a bargainor bound to have a perfect title at the date of the (213) contract to sell. It is sufficient if the title is perfect at the time it is attempted to be enforced, either by the bargainor or the purchaser. Hobson v. Buchanan, 96 N.C. 444.

Upon this undisputed evidence as to the Stephens deed, and the continuous possession of the defendants, it would seem that it would have been proper for the court to have charged the jury that, if they believed the evidence, the plaintiff was the owner of the land and could make a good title to the same; that the defendants had contracted to purchase the same of him at the price of $300, secured by the notes offered in evidence; that there was a bond for title from plaintiff to defendants. But if there was no bond, the defendants are at the wrong end of the contract to plead or take advantage of the statute of frauds. Taylor v. Russell, 119 N.C. 30.

But as the case goes back for a new trial, other facts may be developed by the defendants. They may prove that they did not buy, or that there have been such transactions between them and the plaintiff as to show that they have not continued to hold said land as his bargainee.

We think it is time the plaintiff had settled his intestate's estate; and as he reported the sale to the court that the land brought $330, he is chargeable with this sum and interest thereon from the date of the sale, when Stephens bid it off, to the date of his settlement. Highsmith v.Whitehurst, 120 N.C. 123. And if the plaintiff does not settle the estate and properly account for this amount, we can see no reason why defendants may not be entitled to the two-fifths of this amount as a payment or counterclaim on their purchase indebtedness, provided they set up this defense.

New trial.

Cited: Lewis v. Gay, 151 N.C. 170; Rogers v. Lumber Co., 154 N.C. 112;Brown v. Hobbs, ib., 546, 550; Riley v. Carter, 165 N.C. 336.

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