Lemly v. Ellis

Walker, J., after stating the case: The first question raised by the defendant is that the affidavit upon which the order of publication is based is defective, as no cause of action is sufficiently set out therein, and the defendant’s counsel, in support of this position, relies on Bacon v. Johnson, 110 N. C., 114, and Mullen v. Canal Co., 114 N. C., 8; Code, sec. 218 (Revisal, sec. 442). The specific grounds of objection are: 1. That there is not a sufficient reference to the deed in which the covenant is to be found. 2. That there is no definite description of the land, having special regard to its locality. . 3. That there is no allegation of an eviction under paramount title so as to constitute a good cause of action for a breach of the covenant of warranty. It seems to us that the reference to' the warranty, as contained in a certain deed from W. B. Ellis to W. A. Lemly, which is registered in Madison County, is definite enough to notify the defendant of the particular nature of the cause of action, and this is the chief purpose in requiring publication to be made. The context of the affidavit would lead to the — 209 — inference that Madison County is in this State, nothing appearing to the contrary. The same kind of reference is once made to the county of Eorsyth, that is, without naming the State of which it is a part, although it elsewhere appears that a county of this State is intended. The allegation is at least sufficient to inform the defendant of the deed to which reference is made, as it does not appear that there ever was any other deed between the same parties and certainly none registered in the county of Madison. The amount of damages claimed for the breach, while not of very much weight in identifying the cause of action, should not be entirely excluded from consideration in this connection. What we have said applies to the first two grounds of objection. The third is clearly untenable. When the plaintiff alleges that there has been a breach of the contract, it is necessarily implied that there has been an eviction under a paramount title, or its equivalent, the adverse possession of the land at the time of the delivery of the deed by some one having such a title. Shankel v. Ingram, 133 N. C., 258; Price v. Deal, 90 N. C., 290. The allegation of a breach includes, of course, everything essential to constitute a breach of the covenant. It may not be a good allegation in a pleading, as being in the nature of the statement of a conclusion, but we cannot say that it is so radically defective when used in an affidavit for publication aa to render it ineffectual. A fuller and more explicit statement of the facts would perhaps be better, as in affidavits, and especially in pleadings, the la,w seeks to deal with the facts and not the “conclusions of the pleader from them. But the failure to comply with the requirements of the law as to the form of a pleading or of a statement in an affidavit falls short of proving that the affidavit is fatally defective, if otherwise it give sufficient notice of the nature of the cause of action. The cases cited by the defendant’s counsel do not apply. In the first case, the affida — 210 — vit referred simply to a suit for specific performance of a contract to convey land in Craven County to which, it is alleged, the defendant was a proper party; while, in this case, special reference is made to the covenant of warranty in a deed from the plaintiff to the defendant, which is registered in Madison County, for the breach of which he claims $13,500 as damages. The other case cited was decided upon a different point. The defendant’s counsel also contended that the defect in the affidavit is also- to be found in the publication itself; but what we have already said is equally applicable to this objection. We hold that the affidavit and publication, when-naturally and reasonably interpreted, were not calculated to mislead the defendant as to what was really meant, and gave him sufficient notice to come in and defend his rights. The defendant’s next ground of objection is that the attachment could not be levied upon the bonds, as they were at the time in the possession of the Court (in custodia legis), having been deposited there by the plaintiff three days before the levy was made. It appears in the case that the bonds had been levied upon by the Sheriff under a prior attachment, and we see nothing in the case to show that the lien of this levy did not continue to the time of the second levy; and if so, the Sheriff had, in contemplation of law, the custody of the bonds, although he may have left them with the plaintiff for safe-keeping and they were afterwards turned over to the Clerk of the Court, for no- rights of third persons, either creditors or purchasers; had intervened, so as to invalidate the levy as to them. It is admitted by the defendant, in his written motion, that the former levy was still in force; and if this be true, the Sheriff had the legal right to the possession. This, therefore, is the ordinary case of a second levy on property in the possession of the officer who made the first one. The act of the deputy was, of course, the act of the Sheriff, — 211 — who was his principal “qui facit per alium facit per seIt was competent for the Sheriff, so far as the defendant is concerned, to leave the bonds in the possession of the plaintiff as his bailee; and thus placed, they were still subject to the prior levy. Kneeland on Attachment, secs. 474 and 492. How could the defendant be prejudiced in such a case, if the Sheriff has the bonds forthcoming to answer the mandate of any process afterwards issued to him by the Court? But we do not see, if there was no prior levy by the Sheriff, why he could not levy on the bonds in the hands of the plaintiff or even after they were put in the custody of the Clerk. They were not, in a legal sense, in the custody of the Court bv reason of the deposit with the Clerk, because the Court had never ordered any such deposit to be made, had not even recognized it, and there was no reason why the deposit should be made at that stage of the case. Besides, the Sheriff had, in law, the custody of them by virtue of the prior levy and was at least in constructive possession. The general rule undoubtedly is that property in the possession of the Court cannot be attached, as it is said then to be in custodia legis, and is protected not only on the ground of public policy, but for other good reasons. Kneeland on Attachment, sec. 410, et seep The rule has been relaxed in some cases. See Williamson v. Nealy, 119 N. C., 339, where the coursé of decision in this State is fully set forth. But in this case the deposit, as we have shown, was not made by the authority of the Court and was not within tire rule protecting property in custodia legis from a levy. The statute is broad in its language and requires the Sheriff to levy upon any of the property of the defendant in his county. Revisal, sec. 765-767. It appears that there is nobody who can complain of the levy except the plaintiff, as the deposit was made by him. Besides all this, the Court, by its subsequent proceedings, has recognized the levy of the Sheriff as a valid one and has acted upon it as — 212 — suck But if the Court bad the custody of the bonds by virtue of the- deposit or of the Sheriff’s levy — and the Court surely had it either the one way or the other — it will -not be released, but the custody of it retained so as to await the result of the action and answer and satisfy any judgment that may be recovered. It is immaterial how the property was brought under the control of the Court, whether by attachment or some other equivalent and lawful act. Pennoyer v. Neff, 95 U. S., 714. The objection to the evidence of Reynolds is not well founded, even if it was made in apt time. The witness testified that he is not interested in the event of the action, and it does not appear that he is. He may have an interest in the land, but this action was not brought to recover the land. The plaintiff already has it and requires no aid from the Court to complete the investiture of title. He sues for damages, and the witness is in no way interested in his recovery of them, and he must be so interested in order to disqualify him. Bunn v. Todd, 107 N. C., 266; Wetherington v. Williams, 134 N. C., at p. 279 ; Deaver v. Deaver, 137 N. C., 240. We do not see' how the entries in the stock-book as to the value of the stock were competent to contradict the witness Reynolds. He did not make them, nor does it appear that they were made in such a manner as to- be admissible against the plaintiff. They were res inter alios acta. But the witness testified substantially to the contents of the book, and in this way the defendant got the full benefit of the entries as evidence. The Court properly entered a personal judgment against the defendant. Mullen v. Canal Co., 114 N. C., 8, which was cited by the defendant’s counsel, does not decide otherwise. The Court merely holds in that case that, if there is a special - appearance and a motion to dismiss, which is overruled, the entry afterwards of a general appearance and taking part in — 213 — tbe trial of tbe case upon its merits, do not constitute a waiver of tbe defendant’s right to insist in tbis Court on bis motion to dismiss, if be appeals from tbe judgment, and it was not intended to decide tbat tbe general appearance does not authorize tbe Court to render a personal judgment. Tbe exception to the ruling on tbe motion to dismiss is fully reserved to tbe defendant, but.this does not affect tbe right of tbe plaintiff to a personal judgment, which follows, as a matter of course, when there is a general appearance. Revisal, sec. 447; Wilson v. Seligman, 144 U. S., 47. When there is no general appearance, but merely a special one, and a motion to dismiss for defective service of tbe original process, or for defective substituted service by publication, and tbe motion is overruled, or if tbe defendant does not appear at all, tbe Court acquires jurisdiction, where an attachment has issued or tbe res has otherwise been brought within its control only to tbe extent tbat tbe res will satisfy tbe plaintiff’s recovery, and no general or personal judgment will be binding beyond tbat. Pennoyer v. Neff, 95 U. S., 714; Winfree v. Bagley, 102 N. C., 515, and May v. Getty, 140 N. C., 318, where tbe cases are collected. But a general appearance changes all of tbis and confers general jurisdiction of tbe person and cause of action, with tbe right to proceed pei’sonally against tbe defendant. It occurs to us tbat tbe defendant’s counsel pursued the proper and only safe course, in making bis general appearance, so as to protect tbe interests of bis client. Tbe Court does not appear to have rendered a simple judgment for tbe debt, as if it were an action at law, with an order to tbe Sheriff to sell the attached property, in the nature of a venditioni exponas (Revisal, sec. 784; Atkinson v. Ricks, 140 N. C., 421; May v. Getty, 140 N. C., 310), but it rather proceeded on tbe idea that tbe contract for tbe sale of tbe land bad not been fully executed by tbe parties, and — 214 — therefore granted equitable relief by directing that the bonds be sold by a commissioner. No harm can come to the defendant from this form of judgment, as he will have the right to object to the sale if the property does not bring a fair price, whereas if it had been sold by the Sheriff, this objection to the sale would not be open to him. While there was no error committed in the rulings so far considered, we do think the Court erred in its charge to the jury upon the fourth issue as to the damages. Let it be conceded, for the sake of the argument, that the Court correctly charged the jury as to how to value the stock, until he told them that they could consider, in that connection, “the testimony as to the payment of dividends and as to whether the plant had been a success or not,” we think that instruction was erroneous. • The value should have been determined as of tlie time the covenant was made, and according to the facts then existing, and not by what afterwards occurred. The parties did not and could not know with certainty whether the company would fail or succeed. They dealt with each other and made their own calculation upon the facts as they then existed and upon the situation as it then appeared to them. It, perhaps, was proper for the jury to consider the probabilities of success or failure, but when they were instructed that they might also consider actual eventualities, a factor was introduced into the computation which the parties could not have had in their minds at the time they fixed and agreed upon the consideration of the deed. It is what the parties thought, at the time of making their contract, were the values of the respective pieces of property sold, and not what they proved to be by subsequent events, which could not be taken into the calculation beforehand, as they could not be forecasted with any degree of certainty. Matters beyond the human ken could hardly be*said to have been within the contemplation of the parties, so as to become proper elements — 215 — to be considered in assessing tbe damages resulting from a broken covenant. Tbe evidence and charge as to tbe actual success of tbe company were calculated to mislead tbe jury and produce a wrong appraisement of tbe value of tbe stock, and one tbat would necessarily increase tbe value of tbe Mountain Island tract of land, tbe title to wbicb bad proved to be defective. There was error in tbe respect indicated, for wbicb a new trial is ordered, but it will be restricted to the fourth and seventh issues as to damages, tbe seventh issue being included, as tbe amount awarded, in response to tbat issue, was made by tbe jury a part of the damages assessed under tbe fourth issue. Tbe appellee will pay tbe costs of this Court. New Trial.