HENDERSON COUNTY, NC - COURT - William Case v. Marvill M. Edney, Dec 1843
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WILLIAM CASE v. MARVILL M. EDNEY et al.
North Carolina State Supreme Court, December Term, 1843,  NC 93.
Sale of a Defective Mare

Samuel Rufus Edney is one of the defendant parties. Marvill M. Edney is the
son of Reverend Asa Edney; Samuel Rufus Edney is the son of Asa's brother,
Reverend Samuel Edney, Jr.

Where one has given a deed of trust on his property, to be sold for the
benefit of his creditors, and they have neither released their claim on him
nor assented to the deed, he has such an interest in the sale of the property
that if at a sale made by his trustee he stands by and sees property sold in
which he knows there is a latent defect and does not disclose it he makes
himself liable to the purchaser in an action for deceit.

Appeal from Judge C.J. Pearson, at an extra session in August, 1843, of
Buncombe County.

Case in the nature of an action of deceit for a fraud in the sale of a mare.
It was proved on the trial that in November, 1839, the defendant Marvill
Edney, being much indebted, executed to the defendant Rufus Edney a deed of
trust, which was duly proved and registered, for his real and personal estate,
including several tracts of land and many articles of personal property, among
others the mare in question, in trust to sell and apply the proceeds to the
payment of the debts specified; that in December, 1839, the said Rufus, the
trustee, sold all the property at public sale; that the plaintiff attended and
bought the mare at $75, for which he gave his note and surety to the trustee
according to the terms of the sale; that Marvill Edney was present at the
sale, but took no part in it and said nothing one way or the other to the
property. It was also in evidence that in the spring of 1839 the mare had a
colt, and soon afterwards was discovered to be very lame in her left foreleg;
that she continued lame during the summer, but early in the fall, after the
colt was taken from her, she got in good order and was to all appearance well.
One of the witnesses said that although when standing or walking nothing
seemed to be wrong, yet when put to a trot he could perceive she was a little
stiff. As to this the evidence was contradictory.

On the day of sale she appeared to be well, and some weeks after the sale the
plaintiff, although he had been told soon after he purchased her that the mare
had been lame the spring before, said he was well pleased with her. About 1
February, 1840, the mare became very stiff in all her joints and died soon
afterwards. There was other evidence which is not material to state.

The court charged the jury that there was no evidence that the defendant
Marvill had sold the mare to the plaintiff, or had made any misrepresentation,
or done any act to assist the defendant in practicing a fraud, supposing the
latter to have been guilty of a fraud; and inasmuch as the legal title had
passed out of Marvill and was vested in Rufus, he was not accountable as an
owner would be who procured an auctioneer to cry his property merely as his
agent, and stood by in silence. As to the defendant Rufus, the court charged
that although he acted as trustee in making the sale, yet, like all other
persons who sold, he was bound to act honestly and to disclose defects if he
believed them to exist. It was then left to the jury whether the mare was
unsound at the time of the sale, and whether the defendant Rufus knew or had
reason to believe that she was unsound; if so, as he failed to state the
circumstances, he was liable in damages. The jury found a verdict in favor of
the defendants. A new trial was moved for on the ground of error in the charge
of the court as to the defendant Marvill and refused, and judgment being
rendered pursuant to the verdict, the plaintiff appealed.


No counsel for plaintiff. Hoke for defendant.

JUDGE DANIEL: The court said to the jury that inasmuch as the legal title to
the mare had passed out of Marvill Edney and vested by the deed of trust in
Rufus Edney, the trustee, he was not accountable as one would be who procured
an auctioneer to cry his property merely as his agent, and he stood by in
silence. Was this part of the charge correct? If the seller of an article is
aware that there is any defect in it, and he fraudulently conceals it, and it
be such a defect as the buyer hath not the means of discovering by the
exercise of ordinary diligence, the purchaser may maintain an action of deceit
in the sale. If the owner had procured an auctioneer to sell, it is admitted
that if the thing so sold had been defective, and the owner, knowing of the
defect, stood by and failed to disclose it he would be liable. The legal title
in the mare was transferred by the deed to Rufus Edney to sell her, and the
stipulation in the deed was that he should apply the proceeds of the sale to
satisfy certain creditors of Marvill Edney. There is nothing in the case to
show us that the creditors had released the debtor in consideration of the
assignment of this property for their benefit, nor that they in fact had ever
agreed to accept of the said property for their benefit.

If, therefore, the creditors were not to release, Marvill Edney had an
interest in the price the mare might bring, either as constituting a fund for
the payment of his debts or as resulting to his use. Although a court of law
may not be able to enforce such rights, yet it is obliged to take notice of
them as valuable interests. They affect the competence of witnesses, and in
some instances may be sold under execution. It seems to us, therefore, that
the maker of the deed was materially concerned in raising up the fund by the
said sale to the highest amount; and it also appears to us that Rufus, in the
receipt and application of the money, is to be looked upon as the agent of
Marvill Edney. We, therefore, are of opinion that the aforesaid part of his
Honor's charge was erroneous, and that there must be a new trial as to Marvill
Edney; but the verdict and judgment in favor of Rufus Edney are not disturbed.

It will not be understood from this that we think mere silence of the debtor
as to defects in his property, when he is present at a sale under execution,
would amount to a fraud, for that is a proceeding in "invitum" in which the
sale is exclusively the act of the law, and the rule of "caveat emptor"
applies.

PER CURIAM. New Trial, in favor of William Case.