Bailey v. . Stokes

ClaeicsoN, J. The plaintiffs’ only exception and assignment of error is to the judgment of nonsuit in the court below, as to Ernest J. White-hurst. Plaintiffs contend that there is sufficient “evidence in .the record to fix Ernest J. Whitehurst with notice of the defect and fraud in the title of codefendants, Stokes & Congleton, and with notice of the equity of redemption in the plaintiffs.” We cannot so hold. Stokes & Congleton (W. F. Stokes and J. B. Congleton) sold under a mortgage made to them by plaintiffs. At the mortgage sale W. G. Stokes purchased the land, and title was made to him. Thereafter, W. G. Stokes conveyed the property to Stokes & Congleton. The plaintiffs, recognizing Stokes & Congleton as owners in 1932, rented the farm from the said firm, paying rent therefor in the fall of that year. During said year, and while the plaintiffs were occupying the same, Stokes & Congleton, the purchasers, made numerous improvements thereon. At the beginning of 1933 the farm was rented to the defendant White-hurst. The plaintiffs, before moving from said farm, sold a considerable amount of personal property to the new tenant, Whitehurst, this property consisting of tobacco sticks, lumber, light fixtures, and wire screens. At no time did the plaintiffs notify Whitehurst that they *116 claimed any interest in tbe farm, but moved off voluntarily and without protest. Whitehurst cultivated the farm during 1933. Before this action was begun, and during the fall of 1933, Stokes & Congleton, for value and without notice, sold the farm to Whitehurst for a consideration of $4,500 — $500.00 cash and the remainder secured by a lien on the property — since which time an additional sum of $500.00 has been paid on said indebtedness. Numerous witnesses testified that the amount paid by Whitehurst was the reasonable market value of the farm. All the evidence discloses the fact that at no time did Stokes & Congleton, or the plaintiffs, notify Whitehurst that the plaintiffs were claiming any interest in the property, or claiming that the sale was irregular and illegal. The evidence was to the effect that Whitehurst purchased the property in good faith for full value and without any notice of plaintiffs’ claim to an equity of redemption in the land. If there were anything in the chain of title that would put Whitehurst on notice, the plaintiffs would be estopped by their conduct to assert same. We think that the ruling of the court below is fully supported by the case of Lockridge v. Smith, 206 N. C., 174, where the matter is fully discussed and authorities cited. The second question involved on this appeal, as set forth by defendant Whitehurst, is as follows: “Whether the plaintiffs are now estopped, the record disclosing that they consented to issues and moved for judgment on the findings of the jury awarding damages, the same constituting an election on his part.” We think, under the facts and circumstances of this case, that plaintiffs are estopped. Plaintiffs elected to press their cause for damages after the nonsuit was entered in the court below as to Whitehurst. The issues were agreed to by plaintiffs, a verdict was rendered in plaintiffs’ favor, and on motion of plaintiffs the court below rendered judgment. The amount of recovery was paid to the clerk of the Superior Court. Plaintiffs cannot “blow hot and cold in the same breath.” In Warren v. Susman, 168 N. C., 457 (459-460), speaking to the subject, is the following: “As to the land, defendant bought it for itself, though it acted indirectly by an agent. It is the same in equity as if it had bought in its own name. Whitehead v. Hellen, 76 N. C., 99. The plaintiff could elect to- have the sale set aside and the property returned to the trust fund, or recover of the defendant, who had sold and bought at the same time, in breach of his trust, the value of the land where the trustee insists on the validity of the sale and his right to retain the property, and has conveyed it to a third person, whose title he also insists is unassailable. . . . The cestui que trust, in making his election, is not required, in such circumstances, to- take the property upon his trustee’s terms, or at a price fixed by him; but equity requires *117 that if tbe trustee elects to stand upon bis right as purchaser, instead of surrendering tbe property to tbe beneficiary, be must pay tbe reasonable value of tbe land or a fair compensation for tbe breach of bis trust; and this, with greater reason, is true where tbe trustee has himself subsequently conveyed tbe land to a bona fide purchaser for value and without notice. Sprinkle v. Wellborn, 140 N. C., 163.” Lykes v. Grove, 201 N. C., 254. For tbe reasons given, tbe judgment of tbe court below is Affirmed.