Overman v. Jackson
| Decision Date | 21 October 1889 |
| Citation | 104 N.c. 4,10 S.E. 87 |
| Court | North Carolina Supreme Court |
| Parties | Overman v. Jackson. |
Vendor and Vendee—Power op Executor-Limitation op Action.
1. Under a contract for the sale of land possession was given, but the title was retained to secure the price. The contract provided that on payment the vendor, "or his lawful representatives, " should convey the land to the vendee, and in case of the default of the purchaser they should have power to advertise and sell the land. Held, that on failure of the vendee to pay the price the vendor's executrix had power, under the contract, to sell the land and make a deed therefor.
2. Code N. C. § 152, limiting proceedings to foreclose or redeem mortgages and deeds of trust to 10 years, does not apply to an action by a vendee to redeem land which has been sold for the purchase money by the vendor under an executory contract of sale.
Appeal from superior court, Perquimans county; McRae, Judge.
On the 20th day of March, 1871, George W. Brooks and David Jackson entered into an agreement under seal for the sale of the tract of land in the complaint mentioned by the former to the latter for the sum of $377.68, whereof $100 was paid, and the residue was to be paid, $100 on the 1st day of January next ensuing, a like sum one year thereafter, and $77.68 on January, 1874; which being done, title was to be made to the vendee, and meanwhile be retained as a security for the deferred sums. The instrument provides that upon full payment said Brooks, "or his lawful representatives, will and shall execute a deed in fee-simple conveying the lands described herein to said Jackson, or to such other person, or in such way, as the said Jackson may express his desire in writing." It is further provided that in case of default "the said Brooks, or his lawful representatives, shall have the power toadvertise said land and sell the same, after twenty days' notice, at Woodville, Perquimans county, for cash, and apply the proceeds to the discharge of the then subsisting indebtedness." The first two installments have been paid, but the last has not been paid; and the defendant, let into possession at the date of and under the contract, has remained in occupation ever since. The vendor died in 1882, having made a will in which he appoints his surviving wife sole executrix, who has caused the same to be proved, and qualified herself for the discharge of the assumed trusts. On March 3, 1883, the executrix, according to the terms of the contract, sold the land at public sale to the plaintiff, R. F. Overman, and has made him a deed therefor. The associated plaintiffs are the children of the vendor, and at the beginning of the present suit, February 20, 1886, were of the several ages of 35, 28, 26, 23, and 20 years. A previous suit, instituted on March 5, 1883, by the plaintiff, Overman, alone, was prosecuted until fall term, 1885, of this court, when it terminated in a nonsuit, and soon thereafter this action was begun. The replication to the answer, in express terms, says that the testator's will gives "his executrix power and authority to sell and dispose of any or such parts of his real estate as she deemed advisable, " and that, by virtue of the contract and will, she had made sale of the premises; nor does this averment seem to have been controverted at the trial. Besides other agreed facts, it was conceded that the matters in controversy were embraced in two questions, to-wit: (1) Whether the executrix of George W. Brooks had power to sell and convey the lands under the provisions of said contract; (2) whether plaintiff's cause of action was barred by the statute of limitations. Upon the first question stated the presiding judge was of the opinion that the executrix had full power to...
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