Stamper v. Stamper
| Decision Date | 19 October 1897 |
| Citation | 28 S.E. 20,121 N.C. 251 |
| Parties | STAMPER v. STAMPER. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Alleghany county; Norwood, Judge.
Action by Anna Stamper against Mary Stamper. From a judgment in favor of defendant, plaintiff appeals. Reversed.
A father conveyed lands to a son in consideration of the comfortable support of himself and his wife during their lives, and on default, the grantee covenanted to reconvey to the father and mother. Held, that the grantor and his wife had the right to demand a reconveyance, on breach of the covenant, in entirety, with the right of survivorship.
Hackett & Hackett, for appellant.
R. A Daughton and W. J. Peele, for appellee.
This was a civil action, brought by the plaintiff, widow of Hiram Stamper, to enforce the reconveyance to her by the heirs at law of Milton Stamper of certain lands, in accordance with the provisions of a bond executed by the said Milton Stamper on the 18th day of July, 1873, the condition of which is as follows: "The said Milton Stamper is to comfortably support and maintain at his expense, upon the said land, the said H. H. and Anna Stamper, during their natural lives, and upon default so to do, is to reconvey the land above referred to, to the said H. H. and Anna Stamper." The deed conveying to Milton Stamper the land referred to in the bond and fully described in the deed, states, as its consideration, "that for and in consideration of love and affection, and the further consideration of an obligation this [day] given by the said Milton Stamper to the said H. H. Stamper for the support of the said H. H. and Anna Stamper, and to which bond reference is hereby given for a more specific explanation of its terms." The deed further says in the habendum: "To have and to hold to him, the said Milton Stamper, his heirs and assigns, forever, free and clear from any and all incumbrances whatever, except those set forth in the bond above referred to," etc.
Upon the conclusion of the plaintiff's testimony, his honor intimated that, upon the plaintiff's own showing, he would instruct the jury that, if they believed the testimony, they would find in favor of the defendant, upon which intimation the plaintiff submitted to a nonsuit, and appealed. In this intimation, we think, there was substantial error. There was direct and positive testimony introduced by the plaintiff tending to show that the defendant failed to comply with the conditions of the bond. If he so failed, we think the plaintiff is entitled to a decree for specific performance of the covenant in the bond, and a reconveyance of the land. Witnesses testified, among other things, that the defendant committed some crime admitted by the counsel to be homicide; that he lay out in the woods for two years, and was then sent to the penitentiary, where he remained four or five years, during which time he contributed nothing to the support of his mother; that, after the expiration of his sentence, he came home, where he remained and worked until his death; and that he was taken care of in his last illness by his mother, the plaintiff, and his sister, Mrs. Hall. Surely, if the jury believed this evidence,--and it must be taken in the light most favorable to the plaintiff,--they could not find that Milton Stamper had complied with the conditions of the bond, as he had neither supported his mother nor reconveyed the land. If his honor meant that the plaintiff could not recover as matter of law, then, we think, there was equal error. The subject-matter was land, and the bond plainly provided for a reconveyance in case of default. While it is universally conceded that specific performance is a matter of discretion, the best authorities agree that, where a contract relating to land is not objectionable legally, it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages for a breach thereof. Story, Eq. Jur. § 751; Bisp. Eq. § 364; Pom. Eq. Jur. § 1402; Kitchen v. Herring, 42 N.C. 190.
It is urged that this case is in the nature of a...
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