Ex Parte Alexander , 122 N.C. 727 ( 1898 )

The appellant Gwaltney and one Shepard, were the purchasers at a judicial sale of land for division in an ex parte proceeding, brought by the heirs of A. M. Alexander. The purchasers paid 10 per cent cash and gave four notes for the balance payable 1, 2, 3, and 4 years after date of sale, which was on 14 February, 1891. The purchasers entered into possession, made some improvements, received the rents and profits and made another payment on the purchase price, and appellant bought the interest of his co-purchaser (729) Shepard. The land sold lies on the west bank of the French Broad River in Buncombe County at Alexander's station. Upon notice to purchasers to show cause why judgment should not be entered against them for balance due on said land notes, they answered on 15 August, 1894 (1) That at the sale it was represented by the commissioner to sell, by petitioner's counsel and the auctioneer, that the railroad had no title, except the actual roadbed covered by the crossties, about 8 feet, and that the purchaser would get a good title, except the space covered by said roadbed and crossties, and that they bid with that understanding. On the trial it was admitted by the respondents "that there were no false or fraudulent representations made by the commissioner or his attorney to deceive purchasers." This admission takes this defense out of the case.

2. Defense: That the Western N.C. Railroad runs through the most valuable part of said land along the river shore, and said road claims to own 100 feet on either side of the main track, which greatly reduces the value of the land purchased by respondents.

The proofs established these facts: That the railroad was constructed about 1881, and that its charter grants an easement of 100 feet on either side of its track — that by deed dated 16 June, 1869, registered 28 February, 1891, A. M. Alexander, petitioner's father, granted said road the right and privilege to lay out and construct its road at their pleasure on so much and no more of his lands, as said company would have the right to condemn for the use of said company, under its charter. At the date of the sale the railroad was in actual operation over the said land, with a depot station thereon, and these facts were well known to the purchasers. The charter of the road and Alexander's deed (730) conveyed only an easement in the premises without any title in the soil, and if the road should be discontinued the purchasers would have an absolute title without encumbrance to the possession.

The appellee's counsel filed with us an interesting brief to show that, upon equitable principles and authority, the respondent is entitled to no relief, by reason of his silence, long delay in complaining of any supposed injustice, and continued possession even until payment was demanded, etc. We find it unnecessary to take up those questions. The fact of actual possession by the railroad at the date of the sale and purchase is undisputed, and that is sufficient notice to a purchaser of the occupant's equity and makes it his duty to inquire for information. Johnson v. Houser,88 N.C. 388. In Edwards v. Thompson, 71 N.C. 177, this rule prevailed against a nonresident who had no knowledge of any equity in another, except that which was inferred from open possession, which was also unknown to the plaintiff. The Court held, that open possession was a fact of which a purchaser must inform himself, and he is conclusively presumed to do so. Later cases are to the same effect. His Honor properly declined to submit issues as to the title of the railroad company, as there was no evidence of such title except the privilege derived from Alexander's deed, which could not support a plea of title. It only pointed to the right of possession, which was admitted and known to the purchaser.

We discover no error in the trial. Judgment

Affirmed.

Cited: Goodman v. Heilig, 157 N.C. 9.

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