Walker v. Burrell

• Citation: 90 S.E. 425
• Decision Date: 09 November 1916
• Docket Number: (No. 327.)
• Parties: WALKER. v. BURRELL.
• Court: North Carolina Supreme Court

(172 N.C. 386)

90 S.E. 425

WALKER.

v.BURRELL.

(No. 327.)

Supreme Court of North Carolina.

Nov. 9, 1916.

Appeal from Superior Court, Orange County; Devin, Judge.

Action by J. Nick Walker against Dennis Burrell. Judgment for plaintiff, and defendant excepts and appeals. Modified.

The action was to enforce collection of the purchase price of a tract of land which plaintiff, on January 18, 1912, had contracted to sell and convey to defendant at the price of $3,000, payment to be made of accrued interest on the entire debt and $300 on the principal, annually, on the 15th day of December for ten years till paid. The action was instituted to September term, 1915, and there were allegations that defendant, at the time of action commenced, had made only one payment of $150, and that defendant was utterly insolvent and sale was necessary to enforce payment of plaintiff's debt or any part thereof. Demand was also made for possession of the property, etc.

Defendant answered, admitting the insolvency, etc., and that only $150 had been paid, and, in paragraph 5 of the answer, allegedthat at the time of the contract entered into between the parties, there was an additional stipulation that defendant could remain in possession for ten years and six months, provided he cleared up a reasonable number of acres of said land and, built tenant houses thereon, and, further, that if defendant made default in the annual payments, he was to have all the time he needed to make the same, provided it did not exceed the period of ten years and six months, etc., and that these stipulations were omitted from the contract by the mutual mistake of the parties. On issues submitted, the jury rendered verdict as follows:

"(1) Were the matters set forth in paragraph 5 of the answer omitted by mutual mistake from the bond for title as alleged? Answer: No.

"(2) Did plaintiff agree to extend the time for payment on the land if improvements were put thereon by defendant? Answer: No.

"(3) What was the value of the improvements put upon the land by defendant? Answer: $500.

"(4) Did the defendant fail to make the payments called for in the contract and bond, as alleged in the complaint? Answer: Yes.

"(5) In what amount is defendant indebted to plaintiff on said contract and bond? Answer: $3,000, with interest, subject to a credit of $150."

There was judgment, foreclosure, and sale for the entire debt, and defendant excepted and appealed.

O. D. Turner, of Hillsboro, for appellant.

S. M. Gattis and S. M. Gattis, Jr., both of Hillsboro, for appellee.

HOKE, J. (after stating the facts as above). [1] The instrument, after setting out the bargain of sale at $3,000, payable annually $300, with accrued interest on the entire debt, contained further stipulations as follows:

"Now, therefore, if the said J. Nick Walker, on receiving the said purchase money, together with the interest thereon accrued,...