Simmons v. Spruill

• Decision Date: 31 December 1856
• Citation: 56 N.C. 9,3 Jones 9
• Court: North Carolina Supreme Court
• Parties: SAMUEL S. SIMMONS and others v. BENJAMIN A. SPRUILL.

3 Jones Eq. 9

56 N.C. 9

SAMUEL S. SIMMONS and others

v.BENJAMIN A. SPRUILL.

Supreme Court of North Carolina.

December Term, 1856.

The statute of frauds does not require a contract for the sale of land to be under the seal of the party to be charged therewith.

In a covenant to sell land, it is sufficiently certain to describe it as the land “whereon the vendor resides,” or as the “A. B. farm,” provided the tract thus called, is capable of being otherwise sufficiently identified.

When, by the terms of a covenant to convey land, it is provided that the vendor is “to make a deed when called for,” the vendee may demand a deed before the purchase-money is paid.

Where, however, the vendee has sought the aid of the Court, and it appears there is danger of the purchase-money being lost by his insolvency, the Court will not permit him to receive his deed, until the money has been paid, or tendered.

CAUSE removed from the Court of Equity of Tyrrell county.

Benjamin A. Spruill, being seized in fee of a tract of land in Tyrrell county, sold the same to the plaintiff Samuel S. Simmons, and executed, in writing, the following receipt and undertaking, viz: “Received of S. S. Simmons three thousand three hundred dollars, in full payment of the tract of land whereon I live, known as the William Wynn farm; and I bind myself and my heirs to make him a deed for the same when called for.” Dated October 24, 1853, and signed by the said B. A. Spruill.

Simmons afterwards conveyed his interest in this land to the other plaintiffs, Latham H. K. Spruill and Pettigrew, upon certain trusts mentioned in the deed to them, and, pursuant thereto, they prepared a deed of conveyance to them in fee simple for the said land, (the same having been surveyed in the mean time,) and requested that he should sign it, and proposed at the same time, if he preferred making the deed to Simmons, as required by the words of the contract, they would prepare a deed for that purpose, but the defendant declined to execute either. The prayer is for a specific performance of the contract.

The defendant, in his answer, insists that for the want of a seal to the said receipt, and for the reason that it does not contain any description, by quantity or boundary, of the land in question, he cannot be compelled to make a deed therefor. In these respects, he says, he claims the benefit of the statute of frauds to the same extent as though it were specially pleaded. He says further, that although he gave the above receipt as for money, yet, in fact, no money was paid him, but plaintiff transferred to him certain notes on other persons for part of the amount, and gave his own note for the balance. Defendant admits, however, that all these notes have been paid, except a balance of $63,75, due on Simmons' individual note.

The defendant says further, that he purchased from one Basnight, notes on S. S. Simmons, which had been given for a tract of land, to the amount of thirty-eight hundred dollars, and took the same by endorsement, without recourse on Basnight; that since this purchase, Simmons has become insolvent for a very large amount, and has made deeds of trust of all his property for the benefit of his other creditors, excepting him, and says unless he can retain a lien on the William Wynn tract of land for his debts, he will lose the whole. He insists that he has a right to be substituted to the condition of Basnight in regard to the land sold by him to Simmons.

The cause was set for hearing on the bill and answer, and sent to this Court by consent.

Heath, for plaintiffs .

Winston, Jr., and Smith, for defendant .

NASH, C. J.

The complainants are entitled to the relief they ask for. The case is before us upon the bill and answer, and is a simple one. S. S. Simmons purchased from Benjamin A. Spruill a tract of land whereon he lived, called the William Wynn farm, for the sum of $3300, and the defendant executed at the same time a receipt in full for the purchase-money, and bound himself and his heirs “to make him a deed for the same when called for.” The defendant denies that he is bound to make any deed to S. S....