Culbreth v. Britt Corp.

Winborne, J. The only assignment of error presented on this appeal is that the court erred in signing the judgment set out in the record. This assignment of error raises only the questions (1) as to whether the agreed facts, on which the trial judge acted, support the judgment, and (2) whether error in matters of law appears upon the face of the record. *80 Simmons v. Lee, 230 N.C. 216, 53 S.E. 2d 79, and cases cited. See also Van Hanford v. McSwain, 230 N.C. 229, 53 S.E. 2d 84; Employment Security Comm. v. Roberts, 230 N.C. 262, 52 S.E. 2d 890; Credit Corp. v. Roberts, 230 N.C. 654, 55 S.E. 2d 85; Parker v. Duke University, 230 N.C. 656, 55 S.E. 2d 189; Henderson County v. Johnson, 230 N.C. 723, 55 S.E. 2d 502. Defendant, in brief filed in this Court, contends that the judgment from which appeal is taken is erroneous in many aspects, and states ten questions as being involved, — nine of which it debates at length. In the main these contentions are predicated upon the premise that defendant is not bound by the judgment rendered in Culbreth v. Caison, 220 N.C. 717, 18 S.E. 2d 136. This assumption is untenable. See Jones v. Balsley, 154 N.C. 61, 69 S.E. 827; Cover v. McAden, 183 N.C. 641, 112 S.E. 817. The pertinent principles of law are stated by this Court in the Cover case in opinion by Adams, J., in this manner: “In the modern law a covenant of warranty is treated as an agreement of the warrantor to make good by compensation in money any loss directly caused by failure of the title which his deed purports to convey. It is not always essential to the grantee’s right of action on the covenant that he should give his covenantor notice to come in and defend the title. But if no notice is given, the covenantee, in his suit against the covenantor for breach of warranty, does not make out a prima facie case by showing judgment and eviction, he must show, in addition, that he was evicted under a paramount title, unless the covenantor was a party to the suit that brought about the eviction. 15 C. J. 1265, Sec. 97. In Jones v. Balsley, supra, Walker, J., approved the doctrine stated in Carroll v. Nodine, 41 Oregon, 412, to this effect: ‘Before an indemnitor can be expected to defend, he must have reasonable notice of the pendency of the suit or action by which he is to be bound, and afforded an opportunity to participate in or interpose such defense as he may desire; and it is only by complying with such conditions that the party to be indemnified can estop the indemnitor to controvert the matter anew in an action against him upon the indemnity contract or obligation.’ And the Court concludes ‘that the great weight of authority in England and in this country is to the effect that it is sufficient to conclude the vendor by the judgment if he is made constructively a party by substantial notice to come in and defend his title, and that it is not necessary that he be actually a party to the suit,’ ” citing Jones v. Balsley, supra. In the present case it is specifically agreed as a fact that W. C. Caison, the defendant there, caused notice of the action and its purpose to be given to the parties who are now the plaintiffs and the defendant in the present action, and called upon them to come in and to defend the action in accordance with their covenants and warranties. Thus the decision in *81 Culbreth v. Caison, supra, establishes the failure of title and concludes both plaintiff and defendant on all defenses to the action which could have been pleaded there. Gibbs v. Higgins, 215 N.C. 201, 1 S.E. 2d 554, and cases cited. Indeed, the defenses pointed out by defendant in this action are, in the light of the agreed facts, not tenable. And the parties agree that pursuant to’ the judgment in Culbreth v. Caison, supra, W. C. Caison was evicted from the land in question to which the warranty of title relates. Furthermore, the facts agreed show that the amount for which the action of "W. C. Caison was settled by the defendants there, who are the plaintiffs here, is the purchase price plus interest, attorney’s fee and costs, — -the measure of damages as to which there seems to he no controversy. It was not necessary that The Britt Corporation, defendant here, be given notice of the action which W. C. Caison brought against his immediate covenantor, the plaintiffs in the present action. For defendant’s liability on the warranty contained in its deed to the plaintiffs here resulted by the failure of title which was declared by the judgment in Culbreth v. Caison, supra, by which it is concluded. And the plaintiffs here, having satisfied the damage sustained by "W". C. Caison, are in position to recover of defendant here on the warranty of title made in its deed to the plaintiffs — by the measure of damages applied. See Williams v. Beeman, 13 N.C. 483; Markland v. Crump, 18 N.C. 94. Other contentions as to error in the judgment below have been given due consideration, and are held to be without merit. Hence the judgment below is Affirmed.