{
  "id": 11278814,
  "name": "CYRUS CULVER v. JOEL EGGERS",
  "name_abbreviation": "Culver v. Eggers",
  "decision_date": "1869-06",
  "docket_number": "",
  "first_page": "630",
  "last_page": "632",
  "citations": [
    {
      "type": "official",
      "cite": "63 N.C. 630"
    }
  ],
  "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": "1 Dev. & Bat. 60",
      "category": "reporters:state",
      "reporter": "Dev. & Bat.",
      "opinion_index": -1
    },
    {
      "cite": "1 D. & B. 61",
      "category": "reporters:state",
      "reporter": "D. & B.",
      "opinion_index": 0
    }
  ],
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    "simhash": "1:bc5537a0024af81c",
    "word_count": 887
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  "last_updated": "2023-07-14T15:51:48.011339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "CYRUS CULVER v. JOEL EGGERS."
    ],
    "opinions": [
      {
        "text": "Pearson, C. J.\nThe replication, or plea, of the plaintiff, as it is indifferently called in the transcript, seeks to put in issue the validity of the appointment to the office of Clerk of the Superior Court, of Will. J. Critcher, who certifies to the signature and oath of the defendant to his answer. The title to an office cannot be determined in this collateral way. It must be done in some direct proceeding, to which Critcher is a party, as by quo warranto. Williams v. Somers, 1 D. & B. 61.\nHis Honor very properly treated the answer as duly certified by a Clerk de facto, and was well warranted in passing \u25a0over the \u201creplication or plea\u201d as of no effect or legal signifi-canee. We concur in his ruling upon the motion to dissolve the injunction, for the answer is responsive to the allegations of the complaint, and fully denies all of the allegations by which the plaintiff attempts to set up ground for relief. Indeed, we are inclined to the opinion that the injunction was imprudently granted, because the complaint does not make a ease:\n1. The memorandum in writing of the agreement, describes the land as \u201c a certain tract of land where he now resides.\u201d We admit that this vagueness may be aided by an averment in the complaint. The averment is that the tract of land on which he resided was a tract of one hundred acres; so the description is not made to fit the subject-matter of the contract set out in the complaint, to-wit, Three hundred and twenty-eight acres, of which two hundred and twenty-eight is averred to be vacant land.\n2. The allegations make a case for the rescission of the contract, on the ground of fraud: but the relief asked for is a specific-performance., and that not of the contract set out, but of a contract which the Courtis asked to make for the parties,by letting the plaintiff have the tract of one hundred acres on which, he resides, at a fair valuation, and putting the two hundred and twenty-eight acres aside, as land \u201c the title to which was outstanding in the State of North Carolina.\u201d\nThere is no precedent for this relief in any judicial proceeding: a vendee is never required to take a defective title with warranty, although a vendor is sometimes allowed to have a specific performance upon making compensation for a defective title to some small part, which does not materially affect the value of the subject matter of the contract.\nIn this case the vendee asks that the vendor may be compelled to make compensation for more than two thirds of the land.\nThe ruling of his Honor is affirmed.\nPER C\u00fcRIAM. Judgment affirmed.",
        "type": "majority",
        "author": "Pearson, C. J."
      }
    ],
    "attorneys": [
      "No counsel for the appellant.",
      "Battle & Sons, contra."
    ],
    "corrections": "",
    "head_matter": "CYRUS CULVER v. JOEL EGGERS.\n'The right of a de fado officer to hold his office, cannot be questioned collaterally \u2014 as, here, by objecting to an answer purporting to have been sworn to before him.\n..Semble, that a bill for the specific performance of a contract to convey land cannot be sustained by a vendee, where the memorandum in writing relied upon, identifies the tract merely as \u201ca certain tract of land where he [the bargainee] now lives,\u201d and the bill avers that such tract was sold fraudulently as containing 328 acres, but in truth contained only 100 acres, and thereupon proceeds to ask an account of what has been paid by the plaintiff, and a conveyance of the 100 acres, with compensation; the principle of the class of eases nearest to this being, that a vendor may ask for specific performance offering compensation for a failure in the title to some small and immaterial pari of the land.\n^(Williams v. Somers, 1 Dev. & Bat. 60, cited and approved.)\nInjunction, dissolved upon motion, by 'Henry, J, at Wa-\u25a0tauga Spring Term 1869.\nThe bill set forth that the plaintiff had bargained with the defendant for a tract of land which the latter described as -containing 328 acres, showing the bargainee the bo undary of it; that the boundary was falsely stated, and the tract contained only 100 acres; that the defendant had received from the plaintiff money enough to pay for the 100 acres \u2014 although not all that he had agreed to give for the 328 acres; the prayer was for a specific performance in regard to the 100- acres, :an account, and an injunction against the defendant\u2019s selling or collecting tbe balance due upon the notes given for the purchase money by the plaintiff.\nThe memorandum of the contract, was as follows:\n\u201cSTATE OF NORTH CAROLINA,\nWatauga County.\nKnow all men by these presents I, Joel Eggers, have this day sold to Cyrus Culver, a certain tract of land where he now lives for the sum of $1,000, on the waters of Elk Creek. The above obligation is such, &c. August 21st, 1865.\nJoel EggeRS, seal.\u201d\nThe defendant\u2019s answer denied the facts alleged in the bill as to the fraud.\nThis answer was sworn to before one Critcher, Clerk of the Superior Court.\nThe plaintiffs \u2022 \u201c in reply \u201d to the plea, alleged that Critcher was not Clerk and so could not administer an oath, &c.\nThe defendant demurred.\nHis Honor gave judgment allowing the demurrer, and dissolving the injunction; and the plaintiff appealed.\nNo counsel for the appellant.\nBattle & Sons, contra."
  },
  "file_name": "0630-01",
  "first_page_order": 646,
  "last_page_order": 648
}