Falls v. Carpenter

• Decision Date: 31 December 1835
• Court: North Carolina Supreme Court
• Parties: ANDREW FALLS et al. v. FREDERIC CARPENTER, THEODORIC F. BIRCHETT et al.THEODORIC F. BIRCHETT et al. v. ANDREW FALLS et al.FREDERIC CARPENTER'S HEIRS v. ANDREW FALLS, THEODORIC F. BIRCHETT et al.

1 Dev. & Bat.Eq. 237

21 N.C. 237

28 Am.Dec. 592

ANDREW FALLS et al.

v.FREDERIC CARPENTER, THEODORIC F. BIRCHETT et al.THEODORIC F. BIRCHETT et al.

v.ANDREW FALLS et al.FREDERIC CARPENTER'S HEIRS

v.ANDREW FALLS, THEODORIC F. BIRCHETT et al.

Supreme Court of North Carolina.

December Term, 1835.

Where a vendee contracted for the purchase of land, and took possession, but neglected to pay the purchase-money for nine months after it fell due, during all which time the vendor held the bonds for the purchase-money, and did not offer to surrender them, but recognized the contract as still subsisting, it was held, that having allowed the contract to subsist after the default, the vendor could not put an end to it, without a previous formal and reasonable notice to the purchaser to come forward and fulfil it, or he would not hold himself bound. And it was held, further, that upon such purchaser's paying the money, he could demand a specific performance from the vendor; or call for the legal title from a person who had purchased with full notice of the contract.

If a vendor, after a default by the vendee, is still willing to complete the contract, and a third person interposes, and by misrepresenting the willingness of the vendee to fulfil the contract on his part, procures a conveyance to himself, it seems, that the first vendee will have an equity against the second, independent of any he might have against the common vendor. Insolvency, whether existing at the time of the contract, or occurring subsequently, does not of itself, but if continuing so as to disable the purchaser from fulfilling his part of it, may authorize the other party, after request and default, to renounce it, and after reasonable notice may discharge him; or it may be evidence, with other things, of abandonment by the purchaser, but in that case liable to be repelled by other evidence.

The increase of value, is not such a change in the subject-matter of a contract, as is, of itself, a ground for rescinding or not enforcing articles. But if one of the parties refuse to perform, and then comes a change of circumstances, upon the strength of which he is desirous to go on with the bargain, and insists on it, he may be properly repelled, although he was watching for that change.

A defendant, against whom the plaintiff must have a decree, if he gets one at all, cannot, by giving a release of his interest to his co-defendants pendente lite, become a competent witness for them. His liability for the costs, if nothing else, would exclude him.

THE original plaintiff, Falls, purchased in February 1823, from the defendant, Frederick Carpenter, the elder, two adjoining tracts of land in the pleadings described, and executed his bonds for the purchase-money, and took a covenant for a conveyance upon the payment of the price. He took possession, but failed to make the payments; and there was on the 6th day of November, 1826, the sum of eighty-three dollars, forty-three and three quarter cents due for interest in arrear. He then applied to Carpenter to modify the contract by giving further time, and by agreeing to accept payment in grain or country produce, in lieu of money, if he should be unable to raise the money; to which the other acceded. On this day accordingly, that covenant and the bonds were destroyed; and Falls gave three new bonds--two for three hundred and seventy-five dollars each, payable at one and two years with interest from the date, for the purchase-money; and the third, for the balance of interest, eighty-three dollars forty-three and three quarter cents, due on the old contract; which last instrument provided, that it might be paid in grain at specified prices, and that any excess of the grain delivered, after discharging that bond, should be applied to the other two. At the same time, Carpenter entered into a bond, in the penalty of fifteen hundred dollars to Falls, with condition to be void if Carpenter should “at the payment of the two notes for three hundred and seventy-five dollars each, with the interest thereon, convey to said Falls, the said two tracts of land,” in fee simple, with general warranty as to one, and special warranty as to the other.

The original bill, filed the 11th September, 1829, by Falls, charged the contract of November, 1826, and that he was in possession under it, and made payments which satisfied the small bond, and left the sum of one hundred and thirty-one dollars, besides interest, applicable to one of the bonds for three hundred and seventy-five dollars; and that in August, 1829, while the contract was in full force, a valuable gold mine was discovered on the land, which he and other persons under him began to work: that the defendants, Birchett and Ormond were on the land, and saw the plaintiff and his tenants collecting gold, and knew that he had purchased the land, and then claimed it, and was in actual possession; and that with knowledge of these facts, they, on the 22d August, 1829, without informing Falls of their purpose, went to Carpenter (who resided seventeen or eighteen miles off), and proposed to purchase the same lands for themselves: that Carpenter refused to sell to them, unless with Falls' consent, or unless he could get up his bond to Falls; upon which they represented to him, that the bond was not obligatory, because the purchase-money had not been punctually paid; and also, that Falls was yet unable to pay it, and wished to rescind his contract; and pretended that they wished to purchase that the one might build a mill, and the other set up a store, which he wished to do immediately, as his goods were already purchased: that Carpenter did not wish to keep the land himself, but to sell it; and believing those false representations, agreed to sell to them at the price of seven hundred and fifty dollars, which was immediately executed by their giving their bonds for that sum, and taking a deed from Carpenter in fee: that during the treaty, they concealed from Carpenter the fact, that gold had been found on the land, and in answer to an inquiry by him on that point, denied it. The bill further charged, that Birchett and Ormond entered into a part of the land, and collected some gold, of which an account was prayed, and threatened to bring an action of ejectment, or otherwise expel Falls from the land which he had under cultivation, or was working for gold. It also charged, that between the 22d August and the filing of the bill, the plaintiff had come to a settlement with Carpenter, and ascertained the balance due on his bonds, and that he had fully paid the same, and taken up the bonds. The prayer was, for a conveyance by Carpenter, Birchett and Ormond, or those of them in whom the legal title was; and for an injunction and general relief.

Carpenter died intestate, after service of the bill, and before answer; and by a bill of revivor, and supplemental and amended bill, the suit was revived against his administrators, widow and heirs. And it was further charged, that the defendants Birchett and Ormond, had sold and conveyed shares of the land to certain other persons, who had notice of the plaintiff's rights, and were made defendants; and that Falls, before the filing of the original bill, had also assigned undivided shares to certain persons who were made plaintiffs with him.

The administrators were P. Manney and Frederick Carpenter, the younger, who was a son and one of the heirs of F. Carpenter, deceased. They answered, and admitted the contract of Nov. 1826; the possession of Falls under it; the payment of grain to the quantity and value charged in the bill; the sale and conveyance to Ormond and Birchett, and the subsequent payment by Falls of the balance due on his bonds, all as charged in the bill: that thereupon the intestate informed Falls, that Birchett and Ormond had obtained a conveyance from him by inducing him to believe that Falls was unable to pay for the land, and that the contract with him was void; and offered then to make Falls a deed, which Falls declined accepting, unless that to Birchett and Ormond were first surrendered and cancelled: that the intestate then sent the bond of Birchett and Ormond to them, by one Adderholt as his agent, with instructions to tender it to them and demand the deed, which was done, but they refused. These defendants then submitted to any decree between the other parties, and to repay the plaintiff his money, or to surrender to Birchett and Ormond their bond, as the Court might decree the land to belong to the one or to the other.

By an amended answer, the administrators said, that they had no personal knowledge of the transaction; and had before answered upon information, which they have since discovered to be untrue, and to have been imposed on them by the plaintiff and those interested with him: and they and the other heirs, and the widow of Carpenter, then stated the contract of February, 1823, and that of November, 1826; and that although some grain was delivered, they did not know how much, and believed not more than discharged the note for eighty-three dollars forty-three and three quarter cents, or certainly that and the interest on the other bonds--so that the whole principal purchase money remained due in November, 1828, when the last bond became payable; and that no payment was made thereafter, until the last of August, 1829, when Carpenter had sold to Birchett and Ormond. They stated, that through the winter of 1828, and in the spring of 1829, Carpenter applied to Falls for payments, and insisted on them; and that Falls was unable, or alleged that he wasunable, to make any, and proposed to Carpenter to rescind the contract; which was then agreed to by Carpenter, and the contract considered to be rescinded: that it was thereupon understood between these parties, that Carpenter should make sale of the land for his own benefit, but that he should keep the notes of Falls, and the latter keep possession of the...