Forbes v. . Williams , 46 N.C. 393 ( 1854 )

The plaintiff was the owner of the freehold of a lot in the town of New-Berne, and leased the same to one French, for the term of five years; and during the term, the defendant removed from the lot, and appropriated to his own uses, a house situated thereon, for which the plaintiff alleged "that the security of the plaintiff was impaired, and he was damnified to the extent of the rent due upon the lease." The plaintiff was the owner in fee of the lot in question lying in the town of New-Berne, and leased the same by deed to one Henry French, on the first day of March, 1848, for the term of five years. This deed was offered in evidence, and objected to by defendant, but was received by the Court. One of the covenants in this deed is as follows: "The said Henry E. French, for themselves, their heirs, executors, administrators and assignees, doth covenant and agree to and with the said Stephen B. Forbes, his heirs, executors, administrators and assigns, that they will not remove off any building or buildings, that are or may be put on the said lot of ground until the rents are fully paid and satisfied." French built a house upon the lot after he took possession, and afterwards sold it to the defendant, who removed it from the lot before the expiration of the lease, to wit, in March, 1849, the rents remaining unpaid, and which have not since been paid, except for the first year, which was paid by the defendant. These facts were proved by French, who was objected to by the defendant, as incompetent, on the ground of interest, but he was admitted by the Court.

The plaintiff only claimed damages to the amount of the rent which was in arrear. Upon these facts, the defendant contended that the plaintiff could not recover, and requested the Court so to instruct the jury; but his Honor being of a contrary opinion, refused so to instruct. His Honor charged the jury, further, that the rule of damages was the value of the house; but in case this value exceeded the amount of rent due, they should give no more than that sum, as that was only the amount claimed by the plaintiff. The jury found a verdict for the plaintiff.

Rule for a venire de novo for the admission of improper testimony, and for mis-direction by the Court. Rule discharged and appeal. We concur with his Honor in the opinion given in this case. The deed containing the lease from the plaintiff to French was competent evidence, and French himself a competent witness for the plaintiff. The case states that the lot, from which the house was removed, was owned in fee by the plaintiff; the act of removing the house from it by the defendant was a tort to be remedied, ordinarily, by an action of trespass vi et armis; but the plaintiff could not bring that action, because French, at the time it was committed, was in the actual possession of the lot, under a lease from him. The lease, therefore, itself, was pertinent evidence to show the illegal nature of the act complained of. Again, it was competent, if not necessary evidence to show, that, at the time the defendant removed the house, neither he nor French, the lessee, had the right to do so. The lease to French was for five years, commencing the first day of March, 1848, and ending the first day of March, 1853. The lessee covenanted, that no building then on the lot, or which should thereafter be put upon it, should be removed off the lot "until the rents are fully paid and satisfied." This covenant ran with the lease, and extended to the last moment of it. The house was removed, in 1849, four years before the expiration of the lease. To show the terms of the lease, it being reduced to writing, the deed itself was necessary evidence, so far as it was necessary to show those terms. French was a competent witness for the plaintiff, but not a necessary one. French had covenanted not to remove any house from the lot, until the rents were fully paid. What he could not legally do, his vendee could not legally do. The defendant purchased the building, subject to the restriction laid upon his vendor; and to make the removal of the house legal at any time, the burden of showing that the rents were fully paid, devolved on him. It was not therefore necessary, on the part of the plaintiff, to have introduced French in the first instance; but he had a right to do so. Again, the house was treated both by French and the defendant as personal property, and in every sale of personal property, the law implies a warranty of title by the vendor; and, therefore, the vendee has, generally, a right of action against the vendor, if the latter has no title. Admitting, then, that the defendant had no notice of the covenant, on the part of French in his lease, but that he purchased in good faith, believing that he had a right to sell the house, then French would have been answerable to him for the full amount of the damages he might sustain by reason of the breach of his implied warranty. But French is also liable to the present plaintiff, his lessor, to the full amount of the damages sustained by him, in consequence of the breach of his covenant; and in each case, ordinarily, the measure of damages would be the same. French, therefore, having an interest on both sides, stood indifferent between them, and was a competent witness. The question as to the right of lessees to remove buildings erected to carry on trade does not arise in this case. French, the lessee, bound himself by express covenant, to remove no building until the whole rent was paid, and the case states that the rent was in arrears and the covenant allows him to remove any house he should erect after the expiration of the lease.

There is no error in receiving the testimony objected to, nor in the charge.

Judgment is affirmed.