Wilson v. . Vreeland

Walker, J., after stating tbe case: It appears in this case tbat tbe .plaintiff is suing for a breach of the covenant of warranty in tbe deed *506 of tbe defendant to him without alleging'an ouster or eviction by title paramount, which is necessary. On the contrary, he alleges that he is in peaceful possession of the land, and there is nothing to show that his. possession has been disturbed. 11 Cyc., 1125, where it is said that to-constitute a breach of such, a covenant there must have been an eviction or equivalent disturbance by title paramount, and the title or right to. which the covenantee yields must be not only paramount to his own, but paramount to that of any one else. Britton v. Ruffin, 120 N. C., 89; Wiggins v. Pender, 132 N. C., at p. 640. There is a covenant of seisin in the deed to plaintiff, a copy of which is annexed, and such a covenant is broken, if the title was not good, upon delivery of the deed. Britton v. Ruffin, supra. But we do not see why plaintiff was not seized under his deed. At the time that Z. A. Dockery bought at the trustee’s sale he was tenant by the curtesy, and therefore had a life estate in the land. The sale was not made by himself, but by the trustee, and he had the right to buy in order to protect his interest in the land by preventing a sacrifice of it. It is said in Froneberger v. Lewis, 79 N. C., 426, at p. 436: “Wherever the trustee has a personal interest in the trust property, there, of course, he must have the right to protect it, and if to bid for and buy it be necessary to protect it, he must be allowed to do so for that purpose.” Here the purchaser was a trustor and occupied a stronger position than a trustee-would. See, also, Smith v. Black, 115 U. S., 308; Easton v. Bank, 127 U. S., 532. Z. A. Dockery paid a full price for the land, and there is no suggestion of fraud or unfair dealing on his part or in any respect by any one. So far as this record shows, there is nothing that assails his title acquired at the sale. He submitted to a sale of his interest in the land to pay his part of the debt, which was one-half as between him and his wife, and for all that we may know from this case the value of his interest may have been more than that of the remainder, which belonged to his children and which was subject to the payment of their mother’s share-of the indebtedness. Both Dockery and his wife were liable to the bank and Mr. Long, the accommodation endorser, for all of the debt; but as-between themselves they were severally liable for one-half. He was not legally bound to his wife for the payment of her half, though he was so. bound to the creditors. We need not continue the discussion as to this, matter, for it does not appear in the pleadings as now framed but that he has a good title. Whether he is any way liable to his children at law or in equity we cannot decide because the facts are not before us. There is a suggestion in the complaint that Z. A. Dockery has put a cloud upon the title, but no facts are alleged to show it, and Dockery is-not a party to the action. For anything that appears to the contrary,. *507 be may bave acquired a perfectly good and indefeasible title. Hinton v. Pritchard, 120 N. C., 1, at p. 4. We are governed by tbe record and the facts only that appear therein. Z. A. Dockery acquired tbe legal title by tbe purchase of tbe property at the trustee’s sale, and there is nothing to show that be did not also-get tbe equitable title, or one that will survive investigation and adjudication in a court administering equitable principles. Froneberger v. Lewis, supra; Hinton v. Pritchard, supra; Smith v. Black, supra; Easton v. Bank, supra. Tbe demurrer was properly sustained. No error.