Opinion
(June Term, 1861.)
1. The maxim, that equity will not enforce the specific performance of an agreement upon which an action will not lie, at law, for damages, never meant more than that the contract must be such as the law would have recognized, if sued on in proper time and under proper circumstances.
2. One who has executed a bond to make title to land, has no right to insist, in a suit for a specific performance, that the defendant had abandoned his right to relief, while he still holds the bonds given for the purchase money, and has never made an offer to surrender them to his vendee.
CAUSE removed from the Court of Equity of SURRY.
The bill was filed for the specific performance of a contract, in writing, executed by the defendant, Butcher, in the year 1851, in which the defendant binds himself in a penalty, and after reciting that three several bonds had been executed by the plaintiff as the price of (232) the land therein described, which fell due at three several dates, it is provided as follows: "Now, if the said Joseph White shall pay off the said bonds as they fall due, then, when the last of the said payments shall be paid, the said William S. Butcher shall personally, or by his agent or attorney, execute to the said Joseph White, his heirs or assigns, a good and sufficient title deed in fee simple." The bill was filed in the fall of 1857, and alleged the payment of one of the said bonds, and that the defendant, Butcher, had conveyed the land to the defendant, Holderfield, and that he, Holderfield, had covenanted to convey the same to the defendant, Pilson, both of whom had notice of the plaintiffs' equitable claim. The bill alleges that shortly before bringing the suit he tendered the purchase money agreed to be paid, with interest thereon, to the defendant, Holderfield, who was the attorney in fact of Butcher, but that he not only refused to accept the same, but hurried a messenger to the State of Missouri, where Butcher lived, and procured from him a deed for the premises to himself (Holderfield).
The defendants, Holderfield and Pilson, answered, alleging that the plaintiff had only paid a part of the first bond, and had then left the State insolvent, and had abandoned all idea of insisting on his purchase, and that though he subsequently returned, he still had no idea of insisting on the fulfillment of this contract, until he was urged to do so by another person, who enabled him to raise the money which was tendered. The other material allegations of the bill are admitted by the answers. The bill was taken pro confesso as to Butcher.
There was replication and commissions and proofs were taken, and the cause being set down for hearing, was sent to this Court.
Barber and Mitchell, for the plaintiffs.
Boyden, for the defendants.
It is admitted by the counsel for the defendants that the plaintiff, Joseph White, had at one time the right to the specific (233) performance of the contract mentioned in the pleadings, but he contends that such right cannot now be enforced, for two reasons:
First. Because no action at law to recover damages would now lie upon it; and
Secondly. Because the right to enforce the contract in equity had been so acted upon by the plaintiff as to justify the defendants in treating it as abandoned.
1. The first ground of objection is clearly untenable. It is true there is a maxim that equity will not enforce the specific performance of an agreement, upon which an action will not lie at law for damages, and, anciently, it was the practice to send the party to law, there to establish the validity of the contract, before he was allowed to proceed in equity. That practice has fallen into disuse, and the maxim never meant more than that the contract must be such as the law would have recognized, if sued upon in proper time and under proper circumstances. If the rule were that equity would not entertain a suit for the specific performance of an agreement, except where, at the same instant, a suit might be sustained for a breach of it at law for damages, there would be no ground for the existence of another well-known maxim, that time is not of the essence of a contract in equity. Upon the efficacy of this maxim it often happens that a party, by a neglect of a strict compliance with his stipulations in a covenant or other contract, with regard to time, loses his right to sue at law, while he may yet have a remedy by a suit for a specific execution in equity. Walker v. Allen, 50 N.C. 58; Falls v. Carpenter, 21 N.C. 237. Time may, indeed, be made an essential part of a contract, even in the view of a Court of Equity, and in that case that court will require its observance as rigidly as a court of law. The counsel for the defendants contends that the present contract is one of that kind, and, in support of his position, he refers to the language of the bond for title: "Now, therefore, if the said Joseph White shall pay off the said bonds as they fall due, then, when the last of the said payments shall be made, the said W. S. Butcher shall personally, (234) or by agent or attorney, execute to the said Joseph White a good and sufficient title deed in fee simple." The purchase-money for the land was made payable in three installments, secured by three several bonds, and the counsel contends that the punctual payment of each, as it fell due, and, certainly, the payment of all, when last fell due, was intended as an essential requisite to his obligation to make title. We can not discover any such meaning in this any more than may be found in any other contract for the purchase of land, where the vendor stipulates to make title when the price shall have been paid. There is no clause that the contract shall be void if the purchase-money be not punctually paid, and if there were, it would have been waived by the conduct of the vendor in recognizing the existence of the contract, and offering to perform it after the last bond fell due.
2. The second ground of objection, that the contract of purchase was abandoned by the plaintiff, or that at least that his conduct in neglecting for so long a time to fulfill it, taken in connection with his leaving the State and his insolvency, justified the defendants in treating it as abandoned. It is manifest, from the testimony of Mr. Dobson, that the plaintiff never intended to abandon the purchase, and although he acted in such a manner as would have justified the defendants in taking the proper steps to enforce either its prompt execution or its abandonment, yet no such steps were taken, and the plaintiff's claim to equitable relief still remains. The bonds which the plaintiff gave to secure the purchase-money were never surrendered nor offered to be surrendered to him, and the defendants had no right, while retaining them, to consider and treat the contract as being at an end. Their omission to adopt that course is fatal to their defense. See Falls v. Carpenter, ubi supra, and Sugg v. Stowe, 58 N.C. 126.
There must be a decree that the defendant, Holderfield, who obtained the title from the defendant, Butcher, after notice of the plaintiff's claim, must make title upon the payment of the purchase money, (235) with interest, after deducting the rents, as to which there must be an account if the parties desire it.
PER CURIAM. Decree accordingly.
Cited: Boone v. Drake, 109 N.C. 82; Hairston v. Bescherer, 141 N.C. 209.