Sizemore v. Morrow

• Decision Date: 31 December 1845
• Citation: 6 Ired. 54,28 N.C. 54
• Court: North Carolina Supreme Court
• Parties: THOMAS SIZEMORE v. SAMUEL C. MORROW.

6 Ired. 54

28 N.C. 54

THOMAS SIZEMORE

v.SAMUEL C. MORROW.

Supreme Court of North Carolina.

December Term, 1845.

The construction of a written document is purely a matter of law, in all cases, where the meaning and intention of the parties are to be collected from the instrument itself.

Where A. sold a tract of land to B.--made him a conveyance and took his bond for the purchase money, and afterwards B. re-conveyed to A., who entered into bond that he would convey to B., whenever the purchase money should be paid; and it was further stipulated that if the purchase money were not paid, B. should pay a certain rent-- Held that this latter contract rescinded the first, and that the bond given under the first contract was discharged at law.

Appeal from the Superior Court of Law of Person County, at the Fall Term, 1845, his Honor Judge DICK presiding.

This is an action of assumpsit on the following case. The plaintiff was the owner of a house and lot in the town of Roxborough, which he sold and conveyed to the defendant at a stipulated price, to secure which the defendant gave him his bond for $350. This bond Sizemore, for valuable consideration, transferred by endorsement to the Messrs. Webb. Afterwards, and while the above bond was the property of the Messrs. Webb, these parties entered into a new agreement. It had been a part of the original contract, that the defendant Morrow should give Sizemore a surety on his bond. This he failed to do, and becoming embarrassed in his circumstances, the plaintiff became uneasy lest his other creditors, who were pushing him for their claims, should levy upon and sell the house. He proposed to the defendant to give him a deed of trust upon the premises, which he refused. It was thereupon agreed between them, upon the suggestion of their legal adviser, that the defendant, Morrow, should re-convey the premises to the plaintiff, and that the latter should give him a bond to make title when the purchase money was paid by the defendant. Morrow, accordingly, re-conveyed the premises to Sizemore, who at the same time executed to him his bond for title, which contains the following stipulation: “It is further understood between the parties, and is a part of this contract, that if said Morrow fails to pay the purchase money, he is to pay $35 a year rent, and if he pays the rent, he is to pay no interest on the bond. The rent to commence from the time said Morrow took possession.” The Messrs. Webb brought suit against these parties on their bond, and recovered judgment thereon, on which execution issued, and the property of the defendant was sold and the sum of $200 raised. The plaintiff paid $175, and this action is brought to recover that sum, as paid to the use of the defendant.

On the part of the defendant, it was insisted, that, in law, the bond held by the Messrs. Webb, as between these parties, was discharged by the second agreement. The Judge charged the jury, that if, by the arrangement of the 15th of October, it was the...