Houston v. Sledge

• Decision Date: 10 December 1888
• Citation: 8 S.E. 145,101 N.C. 640
• Court: North Carolina Supreme Court
• Parties: Houston v. Sledge et al.

8 S.E. 145

(101 N.C. 640)

Houston

v.Sledge et al.

Supreme Court of North Carolina

December 10, 1888

1. Specific Performance—Pleading—Departure.

Defendant, in answer to an action to compel the specific performance of a contract for the sale of land, set up a rescission of the contract by agreement. Plaintiff replied, admitting an agreement to rescind on payment by defendant of a certain sum of money which had not been paid, and asked judgment for that amount. Held, that the reply was not such a departure in pleading as to defeat the action. Affirming 4 S. E. Rep. 197.

2. Contract—Action on—Defenses.

The fact that an action had been brought to divest plaintiff's equitable estate in the land did not interfere with her claim for compensation under the agreement tc rescind.

3. Frauds, Statute of—Agreement to Rescind Sale of Land.

Such agreement, being merely a recognition on the part of the vendor of his equitable obligation to reimburse plaintiff's expenditures, could be enforced, though not in writing.

4. Tender—After Verdict—Sufficiency.

A tender of a deed to the land after verdict, the plaintiff not consenting to accept the same, was ineffectual.

Appeal from superior court, McDowell county; Clark, Judge.

The plaintiff, Sarah Houston, brought action to compel the specific performance of a contract for the sale of land between her husband, J. W. Houston, and one R. D. Wilson, of whom the defendants M. L. Sledge and Joshua McCurry are executrix and executor. On the first trial there was judgment for defendants on demurrer, which was reversed on appeal. See 4 S. E. Rep. 197. Upon the second trial plaintiff obtained judgment, and defendants appeal.

Batchelor & Devereux, for appellants.

Smith, C. J. When this cause was before us upon a former appeal from the ruling sustaining the defendants' demurrer to the replication taken to the answer, (98 N. C. 414, 4 S. E. Rep. 197,) this language was used in reference to the alleged departure of the replication from the case made in the complaint: "But the plaintiff may waive the delay, and take the money to be paid in reimbursement of the expenditure put upon the premises, and the offer to do this is the substance of the replication. " And again: "Nor does the demand for the money, which may be considered but a proposition to abide by that agreement, essentially change the nature and legal effect of the pleading. " The import of this is that while an unexecuted contract forms no bar to an action for specific performance, for which it was intended to be a substitute and adjustment, the plaintiff may, at her election, proceed upon it, just as, when the statute of frauds is interposed, the plaintiff may have an account of moneys paid and improvements put on the land when the promise relied on was not in writing, and the defendant acquiesced in the outlays, and thereby induced the belief that he would in good faith abide by his contract; and so has this suit been considered in the court below since the decision. Briefly stated, the case is as follows: The plaintiff instituted her suit against the defendants M. L. Sledge and Joshua McCurry, executrix and executor of R. Don Wilson, the first named being also his devisee of the lot which the testator is aileged to have contracted to convey to John W. Houston, the deceased husband of the plaintiff, who claims to be owner of all his estate, to enforce the specific execution of the contract, and the conveyance of the lot on payment of the purchase money; the said vendee having died before any of the notes given to the testator became due. The defendants do not deny that such a contract in writing was made, but in defense set up the total insolvency and inability of both the vendee and the plaintiff to make the required payments, in consequence of which the plaintiff abandoned all claim to thelot, and united in a petition for its sale to make assets to meet the liabilities of the deceased intestate vendee; and the said Wilson entered into possession, and expended a large sum in the construction of a house and putting other improvements upon the lot, making it inequitable now to assert any claim under the contract. To this the plaintiff replies, admitting the rescission of the contract between the plaintiff and the testator, and, as the consideration of such rescinding, alleges that the testator agreed with her to take back the Jot at the contract price, and pay her the value of the improvements made by the vendee, and to take, use, and account for all the material then on hand or contracted for by him; and that having demanded payment therefor, and been refused, she now demands payment of $650 due under said agreement from the defendants, the personal representatives of the vendor, the said 11. Don Wilson. The action thus assumes a new form, being changed from one demanding a specific performance to...