Rodman v. Robinson

Citation134 N.C. 503, 47 S.E. 19
Case DateMarch 29, 1904
CourtUnited States State Supreme Court of North Carolina

47 S.E. 19
134 N.C. 503

RODMAN et al.
v.
ROBINSON.

Supreme Court of North Carolina.

March 29, 1904.


SPECIFIC PERFORMANCE—CONTRACTS TO CONVEY LAND—RIGHTS OF WIFE—AGREEMENT ON SUNDAY — VALIDITY — CONSIDERATION — REMEDIES.

1. Where a wife is not a party to an action for the specific performance of a contract to convey land executed by the husband, and his solvency and ownership of other land sufficient for the allotment of homestead is admitted, he cannot avoid a decree for the conveyance by asserting that his wife was entitled to dower and homestead in the laud, and the decree did not sufficiently guard her interest, as she was not affected by the decree.

2. Code, § 3782, forbidding labor, work, or business of one's ordinary calling on Sunday, docs not invalidate a contract entered into on Sunday for the conveyance of land, which was not an act done as a part of a usual business.

3. A promise to pay a certain sum as purchase money is a sufficient consideration for a contract to convey land.

4. Where a contract for the conveyance of land is accepted, an attempted repudiation by the vendor without the consent of the purchaser is of no effect.

5. A contract for the conveyance of land entered into on Sunday is not invalid as against j public policy.

6. A purchaser of land, on breach of the contract of sale, may sue for specific performance, and is not bound to bring an action at law for damages.

7. Where no fraud or mistake is averred, an allegation that the vendor made a bad trade does not exempt him from specific performance of a contract to convey land.

8. In a suit for specific performance of a contract to convey land, describing the land by metes and bounds is sufficient.

¶ 8. See Specific Performance, vol. 44, Cent. Dig. §363.

Appeal from Superior Court Pender County; W. R. Allen, Judge.

Action by J. F. Rodman and others against J. W. S. Robinson for specific performance of a contract to convey land. From a judgment in favor of the plaintiffs, defendant appeals. Affirmed.

J. D. Kerr, F. R. Cooper, and Shepherd & Shepherd, for appellant.

Connor & Connor and E. K. Bryan, for appellees.

CLARK, C. J. On Sunday, September 14, 1902, the defendant, who then was and still is the owner in fee and possession of the land described in the complaint contracted in writing dated September 13, 1902, with plaintiff Bodman to sell him said land, possession to be given the 1st of January, 1903, and deed to be delivered the 1st of April, 1903, at which time the purchase money was to be paid. In December, 1902, defendant informed Rodman that he would not deliver possession nor accept the purchase money, and repudiated the contract. Nevertheless Rodman did tender the $4,200, the agreed price, in money, on 1st of April, 1903, or as soon thereafter as defendant could be found, and demanded the deed, but defendant refused to accept the money or deliver the deed. The contract Is admitted in the answer, and judgment for specific performance was rendered upon the pleadings, and defendant appealed.

The first assignment of error is: "Because it appears from the answer that defendant was at the time of signing said alleged contract to convey a married man, and his wife is still living, and entitled to dower and homestead right in said land, and the judgment does not sufficiently guard and protect such right." The wife has an inchoate right of dower, but she has no present right to the property, nor to its possession, nor any dominion over it. She has only a right therein contingent upon surviving her husband, which may not happen. Gatewood v. Tomlinson, 113 N. C. 312, 18 S. E. 318. The Code, § 2103, expressly provides that upon the death of the husband the widow shall be entitled to dower. Besides, this is an objection which the plaintiff alone could make. The wife is not a party to this action, and the decree in no wise affects her contingent interest. Having taken the contract without the wife's signature, the plaintiff could not obtain a decree compelling her to join in the deed. Farthing v. Rochelle, 131 N. C. 563, 43 S. E. 1; Fortune v. Watkins, 94 N. C. 304. The Code, § 2106, recognizes the right of the husband to alien without the joinder of the wife, the conveyance having no effect upon the wife's contingent right of dower. Fleming v. Graham, 110 N. C. 374, 14 S. E.

[47 S.E. 20]

922; Scott v. Lane, 109 N. C. 154, 13 S. E. 772; Hughes v. Hodges, 102 N. C. 236, 9 S. E. 437; Mayho v. Cotton, 69 N. C. 289. As to the homestead right, it was not necessary for the wife to join in the contract, because the answer admits that no homestead had been allotted in this land. Mayho v. Cotton, supra, approved in Joyner v. Sugg, 132 N. C, at page 589, 44 S. E. 122. Besides, the answer further admits the solvency of the defendant, that there is no judgment docketed against him, and that he owns other lands more than sufficient in value for the allotment of the homestead. Hughes v. Hodges, supra. The conveyance or contract is valid, subject to the contingent right of dower. Gatewood v. Tomlinson and Scott v. Lane, supra. The wife is not a party to this action, and not estopped by the judgment if the above admissions should prove untrue. The wife not being a party, the exception that her "rights are not protected by the decree" has no place here.

The second assignment of error is: "Because the contract to convey was entered into and signed upon Sunday, and, no consideration being passed, and the defendant having repudiated the contract the week following, said contract is not enforceable, and the judgment should have declared said contract to be void." The promise to pay $4,200 purchase money was a sufficient consideration. Puffer v. Lucas, 101 N. C, at page 284, 7 S. E. 734; Worthy v. Brady, 91 N. C. 265; s. c. 108 N. C. 440, 12 S. E. 1034; Clark on Contracts, pp. 149, 169; 9 Cyc. 323. The contract having been accepted by plaintiff, the attempted repudiation thereof by the defendant without the consent of the plaintiff has no effect Paddock v. Davenport, 107 N. C. 710, 12 S. E. 464; Ryan v. U. S., 136 U. S. 68, 10 Sup. Ct 913, 34 L. Ed. 447. So this exception hinges upon the question whether the contract is invalid because entered into and signed on Sunday. This point has been settled in this state by repeated decisions. A contract entered into on Sunday is not invalid at common law. Clark on Cont p. 393; Drury v. De Fontaine, 1 Taunton, 131 (in which it was held that a vendor could recover the price of a horse sold on Sunday); Benjamin on Sales, § 552. Our statute—Code, § 3782—is copied almost verbatim from the first part of the statute 29 Car. II, c. 7 (1678). The other part forbidding service of process on Sunday is omitted from our statute, which merely provides that "on the Lord's Day, commonly called Sunday, no tradesman, artificer, planter, laborer or other person shall * * * do or exercise any labor, business or work of his ordinary calling * * * upon pain that every person so offending * * *shall forfeit and pay one dollar." This part was construed by Lord Mansfield in Drury v. De Fontaine, supra, not to invalidate a sale of a horse on Sunday, where the sale was not a part of the vendor's ordinary calling. This statute is the foundation of nearly all the Sunday legislation in this country. It is not alleged in the answer that this contract was made and entered into by either the plaintiff Rodman or the defendant, Robinson, in pursuance by either of his ordinary calling. In Melvin v. Easley, 52 N. C. 356, the court said: "The statute in its operation is confined to manual, visible, or noisy labor, such as is calculated to disturb other people; for example, keeping open shop or working at a blacksmith's anvil. The Legislature has power to prohibit labor of this kind on Sunday on the ground of public decency. * * * But when it goes further, and * * *prohibits labor which is done in private, the power is exceeded, and the statute is void." In that case it was held that selling a horse on Sunday was not forbidden by the statute, as dealing in horses was not Melvin's "ordinary calling." Again, it is said in State v. Rick-etts, 74 N. C. 192: "In this state every act may lawfully be done on Sunday which may lawfully be done on any other day, unless there is some statute forbidding it to be done on that day." This has been cited and approved in White v. Morris, 107 N. C, at page 99, 12 S. E. 80 (in which Davis, J., calls attention to the fact that prior to the Code civil process could not legally be served on Sunday, but now the restriction applies only to forbid arrests in civil actions on that day), approved also In State v. Penley, 107 N. C. 810, 12 S. E. 455; Ashe, J., in State v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90, and State v. Howard, 82 N. C, at page 026; Merrimon, C. J., in State v. Moore, 104 N. C. 749, 10 S. E. 183; Taylor v. Ervin, 119 N. C. 276, 25 S. E. 875—all these last holding that it was not illegal to hold court on Sunday if the judge deemed it necessary, though out of considerations of propriety it ought not to be done unless necessary. In State v. Brooksbank, 28 N. C. 73, Ruflin, C. J., held that it was not Indictable to sell goods in open shop on Sunday, and in State v. Williams, 26 N. C. 400, the court, through the same judge, held it not indictable to work on Sunday, it not being...

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37 practice notes
  • Heritage Village Church and Missionary Fellowship, Inc. v. State, No. 87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 5, 1980
    ...the organic law of our state "expressly denies religion any place in the supervision or control of secular affairs." Rodman v. Robinson, 134 N.C. 503, 509, 47 S.E. 19, 21 (1904). And although the differences in terminology in the relevant North Carolina and federal constitutional provisions......
  • Gowan v. State of Maryland Gallagher v. Crown Kosher Super Market of Massachusetts, Inc Two Guys From v. Ginley Braunfeld v. Brown, HARRISON-ALLENTOW
    • United States
    • United States Supreme Court
    • May 29, 1961
    ...11; Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp., 1957, 25 N.J. 188, 135 A.2d 515; Rodman v. Robinson, 1904, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682; State v. Ricketts, 1876, 74 N.C. 187; Bloom v. Richards, 1853, 2 Ohio St. 387; McGatrick v. Wason, 1855, 4 Ohio St. 5......
  • Mcneill v. Durham & C R. Co
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 1, 1904
    ...new law, we have not deemed it our duty to enforce its observance, so as to make it the shield of wrong. Rodman v. Robinson (at this term) 47 S. E. 19. In the case at bar the plaintiff is certainly neither a tramp nor a trespasser, as both of those terms imply an unlawful presence against t......
  • Swanson v. Madsen, No. 31824.
    • United States
    • Supreme Court of Nebraska
    • April 6, 1945
    ...185 Iowa 1254, 171 N.W. 743;Flannery v. Wessels, 244 Pa. 321, 90 A. 715;Harper v. Bronson, 104 Fla. 75, 139 So. 203;Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19,65 L.R.A. 682, 101 Am.St.Rep. 877;Larrabee v. Bjorkman, 79 Or. 467, 155 P. 974;Craig v. Dumars, 7 Tex.Civ.App. 28, 26 S.W. 743;Mid......
  • Request a trial to view additional results
37 cases
  • Heritage Village Church and Missionary Fellowship, Inc. v. State, No. 87
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 5, 1980
    ...the organic law of our state "expressly denies religion any place in the supervision or control of secular affairs." Rodman v. Robinson, 134 N.C. 503, 509, 47 S.E. 19, 21 (1904). And although the differences in terminology in the relevant North Carolina and federal constitutional provisions......
  • Gowan v. State of Maryland Gallagher v. Crown Kosher Super Market of Massachusetts, Inc Two Guys From v. Ginley Braunfeld v. Brown, HARRISON-ALLENTOW
    • United States
    • United States Supreme Court
    • May 29, 1961
    ...11; Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp., 1957, 25 N.J. 188, 135 A.2d 515; Rodman v. Robinson, 1904, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682; State v. Ricketts, 1876, 74 N.C. 187; Bloom v. Richards, 1853, 2 Ohio St. 387; McGatrick v. Wason, 1855, 4 Ohio St. 5......
  • Mcneill v. Durham & C R. Co
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 1, 1904
    ...new law, we have not deemed it our duty to enforce its observance, so as to make it the shield of wrong. Rodman v. Robinson (at this term) 47 S. E. 19. In the case at bar the plaintiff is certainly neither a tramp nor a trespasser, as both of those terms imply an unlawful presence against t......
  • Swanson v. Madsen, No. 31824.
    • United States
    • Supreme Court of Nebraska
    • April 6, 1945
    ...185 Iowa 1254, 171 N.W. 743;Flannery v. Wessels, 244 Pa. 321, 90 A. 715;Harper v. Bronson, 104 Fla. 75, 139 So. 203;Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19,65 L.R.A. 682, 101 Am.St.Rep. 877;Larrabee v. Bjorkman, 79 Or. 467, 155 P. 974;Craig v. Dumars, 7 Tex.Civ.App. 28, 26 S.W. 743;Mid......
  • Request a trial to view additional results

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