Nichols v. Freeman

• Decision Date: 30 June 1850
• Citation: 33 N.C. 99,11 Ired. 99
• Court: North Carolina Supreme Court
• Parties: HARRY NICHOLS v. RICHARD P. FREEMAN.

11 Ired. 99

33 N.C. 99

HARRY NICHOLS

v.RICHARD P. FREEMAN.

Supreme Court of North Carolina.

June Term, 1850.

A vendee, by contract for the sale of a tract of land, can maintain an action upon the bond for title, without having made a payment or tender of the whole of the purchase money, when, by a sale of the property, it is put out of the power of the vendor to make the conveyance, at the time the vendee has a right to call for it.

And it makes no differene, whether the vendor himself has made the conveyance, or whether it has been made by a sheriff under process of law.

In such a case, the measure of damage is the difference between the real value of the property at the time of the breach, and the amount of the purchase money, remaining unpaid.

Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1849, his Honor, Judge MANLY, presiding.

Smith and A. Moore, for the plaintiff .

Bragg, for the defendant .

PEARSON, J.

On the 1st day of January 1841, the plaintiff purchased of one Sutton “the town lot, house, and furniture” in the town of Windsor, at the price of $8000, and to secure the payment thereof, executed three notes for $2666 each, falling due on the 1st of January 1842, '3, '4, and drawing interest from date, and on that day was let into possession. At the same time, Sutton, with the defendant as his surety, executed to the plaintiff a penal bond in the sum of $10,000. The condition, after reciting the contract, the execution of notes for the purchase money, and that the plaintiff was let into possession, but that the title was to be held by Sutton, as a further security for the purchase money, is in these words: “Now, if the said Nicholls, or any other person for him, shall well and truly pay the purchase money, and the said Sutton thereafter, upon being requested, shall refuse to execute a good and sufficient deed, with covenants of seizin and warranty, to the said Nicholls, his heirs and assignees, for the above mentioned property, then the obligation to be in full force, otherwise to be void.”

The action was commenced in March 1848, and is for a breach of this bond. The breach assigned is, that on the 8th of May 1843, the lot, house, and furniture were sold by the sheriff, under executions against Sutton, issuing upon sundry judgments, rendered against him, at August term 1842, of the County Court of Bertie; by reason of which sale, the said Sutton was disabled, and so continued until his death, and his heirs and administrator have ever since been disabled and incapable to convey the property, according to the true intent and meaning of the bond. The declaration has several counts, setting out the breach in different ways.

It was admitted, that the sheriff sold the property and made a deed to the purchaser, who evicted the plaintiff in March 1845. In January and February 1841, the plaintiff made payments amounting to $6552 78. Sutton died in December 1843, intestate and insolvent, leaving several infants his heirs. The value of the property at the time of the sale by the sheriff was $2500. It was also admitted, that the plaintiff had not tendered to pay the balance of the purchase money; and in August 1841, he conveyed his interest in the lot, house, and furniture, in trust, to secure certain of his creditors, whose debts still remain unpaid.

And it was agreed, that if his Honor was of opinion, that the action could not be maintained, a non-suit should be entered; otherwise, judgment to be entered for the penalty of the bond, to be discharged by the payment of $8060 25, if his Honor should be of the opinion, that the proper measure of damage was the amount which had been paid by the plaintiff, less the rent of the property. while the plaintiff was in possession, (from January 1st 1841 to 8th of May 1843, the date of the Sheriff's sale;) or of the sum of $207 80, with interest from the 8th of May 1843, if his Honor was of opinion, that the proper measure of damage was the difference between the value of the property at the time of the Sheriff's sale and the balance of the purchase money remaining unpaid with interest; or of six pence, if his Honor was of opinion, that the plaintiff was only entitled to nominal damage.

His Honor was of opinion, that the action could not be maintained. A non suit was entered, and the plaintiff appealed.

Two questions are presented. Can a vendee, without making a tender of the balance of the purchase money, maintain an action upon a bond for title, on the ground, that by a sale of the property, it is put out of the power of the vendor to make the conveyance, at the time the vendee has a right to call for it?

Lovelock v. Franklin, 55 C. L. R. 372; Bondel v. Parsons, 10 Each. 359; Coke on Littleton, 221, and the other authorities cited by the plaintiff's counsel, fully support the position for which he contends. In Lovelock v. Franklin, the defendant had put the plaintiff in possession of the house, at an annual rent, and had agreed to convey the absolute interest to him, at any time within seven years, on payment by him, at any time during the seven years, of the sum of $1406. The defendant, during the seven years, sold and conveyed the premises to a third person, and the action was brought before the expiration of the seven years and without a tender of the $1406.--The Court held, that the defendant had broken his contract by making the conveyance, and that the action could be maintained without a tender; for, as the defendant had put it out of his power to make the conveyance, a performance on the part of t...