Councill v. Bailey

• Decision Date: 20 December 1910
• Citation: 69 S.E. 760,154 N.C. 54
• Parties: COUNCILL v. BAILEY.
• Court: North Carolina Supreme Court

69 S.E. 760

154 N.C. 54

COUNCILL v. BAILEY.

Supreme Court of North Carolina

December 20, 1910

Appeal from Superior Court, Catawba County; Webb, Judge.

Action by W. B. Councill against C. M. Bailey. From a judgment for plaintiff, defendant appeals. Reversed.

Where plaintiff prays for a money judgment and for such further relief as he may be entitled to, and sets out facts entitling him to specific performance, that relief may be granted, for a prayer for general relief includes a prayer for specific performance.

Where plaintiff sets out facts entitling him to specific performance and prays a money judgment and for general relief, he will, on proof of those facts, be entitled to both a money judgment, a declaration of his lien on the land as security for the debt, and an order for sale of the land.

This action was brought to recover the sum of $6,000 alleged to be due by the defendant under a contract with the plaintiff to purchase from him a tract of land in Rowan county. Plaintiff alleged that he entered into a written contract with the defendant whereby he agreed to sell and convey to him his farm in the said county for $6,000; that he tendered a deed for the land and demanded the payment of the purchase price. The defendant objected to an exception in the deed of certain timber on the land, whereupon the plaintiff tendered, with the deed, a collateral agreement which he alleged had the effect of removing the objection raised by the defendant, but he again refused to pay the money and accept the deed, even with the agreement, for the stated reason that he had made or was about to make, other investments and would not be able to pay for the land. The plaintiff further alleges his readiness and ability to perform his part of the contract and renews his tender of the deed and the agreement to the defendant, although he is not bound, as he is advised, to tender the agreement, as the objection of the defendant to the deed is not a valid one, and the plaintiff's tender of the deed is sufficient compliance by him with the terms of the agreement. In a second cause of action, the plaintiff seeks to recover damages which he has suffered by reason of a breach of the contract by the defendant. Before the time for answering had expired, and before any answer was actually filed, the defendant requested the court, in writing, to remove the case from the county of Catawba, where the plaintiff resides, to the county of Rowan, where the land is situated and the defendant resides. The court refused to change the place of trial. The defendant excepted and appealed. In his answer, the defendant denied all of the material allegations of the complaint and specially averred that the Salisbury Realty & Insurance Company, alleged in the complaint to have made the contract of purchase on his behalf, was not his agent and had no authority to make any such contract for him, and further, that neither the defendant, nor any one in his behalf with authority to do so has ever made or signed any contract, or any note or memorandum thereof, in writing, for the purchase of the said land.

W. P Bynum and Clement & Clement, for appellant.

M. H Yount, W. A. Self, and A. A. Whitener, for appellee.

WALKER J. (after stating the facts as above).

We need not consider the question, which was much debated before us, whether an action for the specific performance of a contract to convey land is in form or effect one for the recovery of land, or any estate or interest therein, or for the determination of such right or interest within the meaning of those words as used in Revisal 1905, § 419, which requires actions of that character to be tried in the county wherein "the subject of the action, or some part thereof, is situated," subject to the right of removal in cases mentioned in the statute. Even if a suit for specific performance be considered as strictly one in personam, and this question we do not decide, there is another clause of the statute which applies to this case and localizes the action. It is provided in the same section that an action for the foreclosure of a mortgage must be tried in the county where the subject of the action, or some part thereof, is situated.

In Fraley v. March, 68 N.C. 160, which was an action for the specific performance of a contract by the assignee of the vendor against the vendee, the court held that "the law of the venue of actions, with reference to the residence of the parties, does not govern this case, but the law of the venue, with reference to the 'subject of the action.' It is substantially an action 'for the foreclosure of a mortgage of real property,' and that must be tried in the county where the land is situate." It is true the plaintiff in that case expressly prayed that the land be charged with the payment of the note remaining unpaid, and that it be sold and the proceeds applied in satisfaction of the balance of the purchase money due by the defendant, the vendee, but he would have been entitled to that relief without any specific prayer for it, upon the facts alleged in his complaint. It is not the form of the demand for relief which will determine the measure or the kind of relief that will be granted, but the facts set out in the pleading. Pell's Revisal, §§ 467 (3) and 565, and cases cited.

In Knight v. Houghtalling, 85 N.C. 17, the court said: "We have not failed to observe that the answer of the defendants contains but a single prayer for relief, and that for a rescission of their contract. But we understand that, under the code system, the demand for relief is made wholly immaterial, and that it is the case made by the pleadings and the facts proved, and not the prayer of the party, which determines the measure of relief to be administered; the only restriction being that the relief given must not be inconsistent with the pleadings and proofs. In other words, the Code has adopted the old equity practice when granting relief under a general prayer, except that now no general prayer need be expressed in the pleadings, but is always implied." Voorhees v. Porter, 134 N.C. 591, 47 S.E. 31, 65 L. R. A. 736.

In this case the plaintiff, it is true, asks for a judgment for the purchase money, but he adds a general prayer "for such and further relief as he may be entitled to"; that is not only for a money judgment, but that he may also have full relief according to the facts he has alleged, and within the scope of the case made by his complaint, the allegations of the complaint being sufficient in form and substance to fully warrant a judgment for a specific performance of the contract...