Potter v. . Miller

Clarkson, J. Tbe first issue was as follows: “Was tbe deed delivered and accepted by tbe plaintiffs with knowledge of tbe outstanding life estate, and with tbe agreement tbat tbe life estate and possession should be afterwards acquired?” It was agreed by tbe parties tbat this issue be answered “Yes.” On tbe whole record we can find no sufficient evidence whatever to be considered by a jury on tbe second issue. It is well said by Mr. Justice Connor, in Strickland v. Shearon, ante, 560: “When parties to a *817 contract have expressed their agreement in terms that are explicit and plain of meaning — that is, when their minds have met on the terms of the contract — it may not be revoked or altered by reason of the mistake of one of the parties alone, resting wholly in his own mind, there being no fraud or misrepresentation by the other. Lumber Co. v. Boushall, 168 N. C., 501.” The finding on the first issue was by consent. The parties sui juris, made a deed and deed in trust. There was a life estate outstanding on the property conveyed. No mistake about the terms. The writings were complete, no fraud alleged or proved. The deed had covenants of warranty. By the first issue it was agreed between the grantor and grantees that the life estate and possession should be afterwards acquired. Defendant Miller sets up in his answer that he has at all times been ready, able and willing to deliver the property to defendants free of the claims of the life tenant. He has not done so, although years have passed. From the pleadings, admissions and entire evidence, the cause of action is one for breach of covenants expressed in the deed. This is the contract of the parties — they must abide by it. In Pridgen v. Long, 177 N. C., 197, Walker, J., speaking to the subject, says: “Where land has been sold and a deed of conveyance has been duly delivered, the contract becomes executed, and the parties are governed by its terms, and the purchaser’s only right of relief, either at law or in equity, for defects or encumbrances depends, in the absence of fraud, solely upon the covenants in the deed which he has received. Rawls Covenants for Title, 459. If the purchaser has received no covenants, and there is no fraud vitiating the transaction, he has no relief for defects or encumbrances against his vendor, for it was his own folly to accept such a deed when he had it in his power to protect himself by proper covenants.” Price v. Deal, 90 N. C., 290; Newbern v. Hinton, 190 N. C., p. 108. “The covenant of seizin is an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey. Thus it is held that the covenant is broken if the grantor (in fee simple) has only an estate tail; or if there is an outstanding estate for life,” etc., etc. Rawle Cov. Tit., see. 58; Crowell v. Jones, 167 N. C., 389, citing 2 Dev. 30. 2 Mordecai’s Lectures (2d ed.), p. 898. From the pleadings, admissions of the parties, and the entire evidence, the suit cannot be maintained except under the contract — breach of the covenants .in the deed. For the reasons given, there must be a New trial.