Banks v. . Banks , 77 N.C. 186 ( 1877 )

While the plaintiff was absent in the army, his land was sold by the sheriff at execution sale, and his mother, the defendant Rachael Banks, became the purchaser. She conveyed to Ezekiel Banks, another son, who subsequently died, and the defendant Melissa Banks is guardian of his heirs at law, and defends this action for herself and as such guardian. The other facts necessary to an understanding of the points decided are stated by Mr.Justice Bynum in delivering the opinion of this Court. Upon issues submitted and under the instructions given, the jury rendered a verdict for the plaintiff. Judgment. Appeal by defendants. The defendant Rachel Banks, at the execution sale of her son's land, he being then absent in the army, represented to the bidders that she was biding for her said son's benefit, whereby she (187) suppressed the biddings and purchased the land at an undervalue, and took the sheriff's deed to herself. This constituted her a trustee of the land for the son. Rich v. Marsh, 39 N.C. 396; Hill v.Whitfield, 48 N.C. 120.

Upon the return of the son after the sale, to wit, in the early part of 1863, the mother offered to convey the land to him on the repayment of the purchase money. This he declined to do, alleging that the land was still his, because it was not properly sold. Whereupon the mother, in August of the same year, sold and conveyed the land to Ezekiel Banks, another son who purchased with notice of all the facts. Soon after this latter sale, and during the same year, the plaintiff tendered to his mother the money and interest paid by her for the land, and demanded a conveyance, which was declined. He is entitled to relief unless his first refusal to take the conveyance on the repayment of the purchase money operated as a renunciation and abandonment of his equity. But clearly it did not have that effect. So far from renouncing his claim, he insisted to his mother that the land was still his, and he claimed it because it had been, as he alleged, improperly sold. To constitute an abandonment or renunciation of claim there must be acts and conduct positive, unequivocal, and inconsistent with his claim of title. Nor will mere lapse of time or other delay in asserting his claim, unaccompanied by acts clearly inconsistent with his rights, amount to a waiver or abandonment. Faw v. Whittington, 72 N.C. 321, were the subject is discussed and the decisions in this State are reviewed and commented on. No such unequivocal renunciation appears in this case. There was no error in declaring that the defendants, the heirs of Ezekiel Banks, are trustees for the plaintiff, and that they shall, by their guardian, Melissa Banks, reconvey the said lands by proper deed to the plaintiff. It will be observed that the decree of the court below does not give the (188) plaintiff a judgment for the excess of the rents over and above the purchase money and interest, and from this judgment the plaintiff does not appeal. From this we infer that the rents were balanced against the purchase money and interest, and that all excess of rents over the purchase money was remitted. This was proper, for it would have been hard measure to have demanded judgment for what appears to us as excessive damages in the way of rents as found by the jury.

PER CURIAM. No error.

Cited: Skinner v. Warren, 81 N.C. 376; Gorrell v. Alspaugh, 120 N.C. 368;McCurry v. Purgason, 170 N.C. 467; R. R. v. McGuire, 171 N.C. 181.