P. A. Dunn & Co. v. Tillery

• Decision Date: 30 June 1878
• Citation: 79 N.C. 497
• Court: North Carolina Supreme Court
• Parties: P. A. DUNN & CO. v. CHARLES P. TILLERY and wife.

79 N.C. 497

P. A. DUNN & CO.

v.CHARLES P. TILLERY and wife.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION, tried at Spring Term, 1878, of HALIFAX Superior Court, before Seymour, J.

R. P. Spiers was indebted in a large sum to H. J. Hervey and to secure the same, on the 1st day of January, 1875, conveyed to him by deed of mortgage a valuable tract of land. The debt consisted of two equal installments of $2995 each payable respectively with interest at one and two years from that date. The deed contained a clause conferring a power of sale on the mortgagee in default of payment of each of the installments as it fell due. Thereafter and before the first payment became due, the mortgagor sold and conveyed his interest and right of redemption in the land to the plaintiffs.

On the 11th day of February, 1876, an agreement was entered into between the plaintiffs and the defendants, reciting the purchase of the said land by the defendant, Annie F. Tillery from the plaintiffs at the price of $5250, and her executlon of five several notes for equal parts thereof, payable respectively in five successive years, and stipulating that on payment of the purchase money, title to the land should be made free of all incumbrance. The agreement also authorized a sale by the plaintiffs if the vendee should fail to pay any of the installments.

It was further provided that the vendee should take and keep possession without molestation from the plaintiffs until the first payment became due, and in case of default therein the plaintiffs might at their election treat the vendee's possession as that of a tenant, and receive the sum of $550 as rent for the preceding year's occupation, and this sum to be credited on the note-- the contract of purchase remaining in full force against her. The crops were also pledged to the payment of the rent. On the 10th day of March, 1876, the parties entered into another contract for supplies to be advanced by the plaintiffs to enable the defendants to carry on their farming operations, and to secure such advances, the latter gave an agricultural lien under the statute on the crops to be raised on the land, subordinate to the prior lien for rent, and conveyed several mules on condition that unless the moneys advanced were repaid before December the 1st, 1876, the plaintiffs might take possession and sell for their reimbursement.

The debt secured in the mortgage not being paid, the land was sold by H. J. Hervey under the power conferred in the mortgage for $2100, and conveyed to the purchaser on the 12th day of February, 1877. The defendants did not provide for the payment of the first installment of the purchase money, and the plaintiffs made their election under the agreement to treat the defendants' occupation as a tenancy, and required payment of the rent money due therefor.

The action is to recover the unpaid residue for advances and rent. The defendants resist the demand for rent on the ground of the plaintiffs' incapacity, in consequence of the sale under the mortgage, to execute their contract; and say that the plaintiffs...