{ "id": 8624773, "name": "R. L. SHUFORD, JR., v. S. G. PHILLIPS and Wife, ROSE PHILLIPS", "name_abbreviation": "Shuford v. Phillips", "decision_date": "1952-04-09", "docket_number": "", "first_page": "387", "last_page": "390", "citations": [ { "type": "official", "cite": "235 N.C. 387" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "101 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650081 ], "opinion_index": 0, "case_paths": [ "/nc/101/0176-01" ] }, { "cite": "118 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652528 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/118/0069-01" ] }, { "cite": "56 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628330 ], "opinion_index": 0, "case_paths": [ "/nc/231/0076-01" ] }, { "cite": "164 S.E. 323", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628985 ], "opinion_index": 0, "case_paths": [ "/nc/202/0803-01" ] }, { "cite": "126 S.E. 313", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653628 ], "opinion_index": 0, "case_paths": [ "/nc/189/0138-01" ] }, { "cite": "98 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274047 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/98/0239-01" ] }, { "cite": "112 S.E. 817", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657821 ], "opinion_index": 0, "case_paths": [ "/nc/183/0641-01" ] } ], "analysis": { "cardinality": 432, "char_count": 8386, "ocr_confidence": 0.504, "pagerank": { "raw": 7.388036091580713e-08, "percentile": 0.44238100368013733 }, "sha256": "82bbd4ca262f78575937e017e81eda0aaecdfb66ad194e03a1f67e7cf3cbac96", "simhash": "1:b1f882a6c188e49b", "word_count": 1411 }, "last_updated": "2023-07-14T17:52:11.505162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. L. SHUFORD, JR., v. S. G. PHILLIPS and Wife, ROSE PHILLIPS." ], "opinions": [ { "text": "BabNhill, J.\nIn his brief the defendant bottoms his attack on the sufficiency of the complaint to state a cause of action on two grounds : (1) \u201cThe complaint fails to allege that plaintiff went into possession, or that he was evicted, ousted, or disturbed in his possession by one having paramount title at the time of the conveyance to plaintiff;\u201d and (2) \u201cPlaintiff, in his pleading, admits the deed upon which J. I. Hickman bases his title is void. It is not, therefore, paramount title.\u201d The contentions thus advanced are untenable.\nPlaintiff pleads (1) the deed of conveyance for the locus executed and delivered to him by defendant; (2) the covenant of warranty therein contained; (3) the entry upon and possession of the land by one Hickman, the sale of the timber by him, and his assertion of paramount title to the premises; (4) notice to defendant of the asserted superior title and hostile claim of Hickman; (5) the institution of an action to oust Hickman and to adjudicate plaintiff\u2019s superior title; (6) judgment in said cause adjudicating paramount title in Hickman and dismissing plaintiff\u2019s action; (7) the failure and refusal of defendant to prosecute an appeal from said judgment; (8) damages suffered by reason of defendant\u2019s breach of warranty; and (9) defendant\u2019s admission of liability. These allegations as here abbreviated are sufficient to state a cause of action for breach of a covenant of warranty.\nA covenant of warranty is an agreement or assurance by the grantor of an estate that the grantee and his heirs and assigns shall enjoy it without interruption by virtue of a paramount title, and that they shall not, by force of a paramount title, be evicted from the land or deprived of its possession. Cover v. McAden, 183 N.C. 641, 112 S.E. 817.\nAllegations of the existence of an outstanding superior title in another, without actual possession, is insufficient to state a cause of action for breach of such warranty. Hodges v. Latham, 98 N.C. 239.\nEither ouster or a disturbance of the peaceful possession by the assertion of an adverse superior title must be alleged. Lockhart v. Parker, 189 N.C. 138, 126 S.E. 313; Guy v. Bank, 202 N.C. 803, 164 S.E. 323; 14 A.J. 535. \u201cThe purchaser need not be actually evicted by legal process. \u2018It is enough that he has yielded possession to the rightful owner, or the premises being vacant that the rightful owner has taken possession.\u2019 \u201d Hodges v. Latham, supra.\nThe duty to allege and prove the existence of a better or paramount title, with actual possession under it, exists only in those cases where there has been no legal ouster. Hodges v. Latham, supra; Guy v. Bank, supra.\nMeasured by these rules the complaint, liberally construed, meets the test and is sufficient to repel a demurrer. It is true plaintiff in his reply asserts that the deed to Hickman was without consideration. But this falls short of an admission that it is void. In any event, plaintiff alleges and relies on legal eviction by judgment of a court of competent jurisdiction. To establish the binding effect of that judgment upon the defendant herein, he pleads notice to defendant of the adverse claim and his actual participation in the prosecution of the action. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15; 14 A.J. 531.\nFurthermore, the demurrer was entered after answer filed, and we have held that the defect in a defective statement of a good cause of action is cured by answer to the merits. Mizzell v. Ruffin, 118 N.C. 69; Bowling v. Burton, 101 N.C. 176.\nLikewise, if driven to it, the plaintiff might resort to the doctrine of aider by answer. Defendant alleges in his answer that plaintiff instituted an action against Hickman to try title to the locus and the termination of that action by judgment adverse to plaintiff. He further alleges \u201cthat for more than thirty years the title to said property was vested in the Hniversity of North Carolina under the escheat laws of North Carolina, and that said property remained the property of the University of North Carolina until May 13,1948\u201d \u2014 the date on which a consent judgment that Hickman owned the property was entered in an action between the University of North Carolina and Hickman.\nIn the light of this latter admission, we are at a loss to perceive just what benefits defendant hopes to reap by his defense to this action. Be that as it may, plaintiff is entitled to be heard on the complaint filed.\nPlaintiff\u2019s action is not barred by any pleaded statute of limitations. The mere existence of a better title without possession and without ouster or disturbance of the possession of plaintiff does not constitute a breach of warranty. The breach arises upon ouster or disturbance of possession by virtue of a superior title outstanding at the time the covenant was made. Mizzell v. Ruffin, supra; Lockhart v. Parker, supra; Guy v. Bank, supra.\nPlaintiff in bis brief undertakes to discuss a number of questions wbicb are not supported by any assignment of error. For tbat reason and for tbe further reason they are wholly immaterial and unrelated to plaintiff\u2019s one assignment of error, we pass them without discussion.\nThe judgment entered is\nReversed.", "type": "majority", "author": "BabNhill, J." } ], "attorneys": [ "W. II. Strickland for plaintiff appellant.", "Claude F. Seila fo.r defendant appellees." ], "corrections": "", "head_matter": "R. L. SHUFORD, JR., v. S. G. PHILLIPS and Wife, ROSE PHILLIPS.\n(Filed 9 April, 1952.)\n1. Deeds \u00a7 17\u2014\nA covenant of warranty is an agreement or assurance by tbe grantor that the grantee and his heirs and assigns shall enjoy the estate conveyed without interruption or eviction by a person claiming under a paramount title outstanding at the time of the conveyance.\n3. Same\u2014\nIn an action on covenant of warranty, allegation of legal ouster by a person claiming under an outstanding title is sufficient, allegation that such claim was under better or paramount title being necessary only when possession has been surrendered without legal ouster.\n3. Same\u2014\nComplaint in an action on covenant of warranty alleging that grantee instituted action for the recovery of the premises and to establish his title against a third person asserting title to the locus, that notice of the action was given grantor, who actually participated in the prosecution of the action, and that judgment was entered in said cause adjudicating paramount title in such third person, is held sufficient as against demurrer, since, in such instance allegation of outstanding paramount title in such third person is not necessary.\n4. Pleadings \u00a7 19c\u2014\nAnswer to the merits cures a defective statement of a good cause of action, and a demurrer thereafter filed on this ground is properly overruled.\n5. Same\u2014\nAnswer alleging an essential element of plaintiff\u2019s cause of action is available to plaintiff under the doctrine of aider upon a subsequent demurrer by defendant.\n6. Deeds \u00a7 17\u2014\nRight of action for breach of covenant of warranty does not arise until ouster or disturbance of the grantee\u2019s possession by virtue of superior title outstanding at the time the covenant was made, and. therefore the statute of limitations does not run against the right of action on the covenant of warranty until there is an ouster under such outstanding title.\n7. Appeal and Error \u00a7 6c (1) \u2014\nQuestions not supported by an assignment of error will not be considered.\nAppeal by plaintiff from Bennett, Special Judge, January Term, 1952, Caldwell.\nReversed.\nCivil action to recover damages for breach of covenant of warranty contained in a deed to real property.\nOn 24 May 1941 defendant conveyed to plaintiff a certain tract of land in Caldwell County by deed containing a full covenant of warranty. In 1948 one Hickman, who was asserting title to the locus, cut and removed the timber therefrom. Plaintiff, after notice to defendant, his grantor, instituted an action against Hickman for the recovery of the premises and to establish his title thereto. At the May Term 1950 the cause was heard and \u201cit was adjudged that the defendant Hickman had the better title and upon the demurrer to plaintiff\u2019s evidence, a judgment of nonsuit was entered.\u201d\nThereupon the plaintiff instituted this action to recover the amount paid defendant on the purchase price of the land, taxes paid, court costs, and attorney\u2019s fees. After answering, the defendant demurred to the complaint for that it fails to state a cause of action. The demurrer was sustained and plaintiff appealed.\nW. II. Strickland for plaintiff appellant.\nClaude F. Seila fo.r defendant appellees." }, "file_name": "0387-01", "first_page_order": 437, "last_page_order": 440 }