Ward v. Ward
| Decision Date | 31 August 1854 |
| Citation | 54 N.C. 334,1 Jones 334 |
| Court | North Carolina Supreme Court |
| Parties | JESSE WARD v. JAMES WARD. |
OPINION TEXT STARTS HERE
Relief may be prayed in the alternative and granted where the first ground set forth on the bill, is not sustained.
CAUSE removed from the court of Equity of Watauga county by consent at the Spring term 1854.
The facts of the case sufficiently appear from the opinion of the court.
Neal for the plaintiff .
Mitchell for the defendant .
The proofs offered by the complainant do not sustain the allegations of his bill, as to the specific relief asked for. The allegation is, that the plaintiff sold the land in question, to the defendant conditionally; the condition being that if the purchase money was not paid at the time specified, the conveyance was to be void. The deed upon its face is absolute: the purchase money specified,--$300.
The defendant positively denies the allegation, and insists that the sale was an absolute one, and without any condition whatever, either expressed or implied. The only witnesses who bore out, in full, the charge in the bill, as to the condition, are Shull and Mrs. Moss. The testimony of the latter is such that we can place no confidence in it. She states she was present when the contract was made, that she attested the bond as a subscribing witness, and that it was made payable in three years. The bond is prod uced and she is not a witness to it, and instead of three years credit, it was five years. We can put no reliance on the recollection of a witness whose memory is so treacherous. We repeat therefore that the plaintiff has failed to sustain the allegations in his bill, by competent testimony. His allegation as to the parol agreement, is further weakened by the fact that the defendant gave his bond to the plaintiff for the purchase money: an instrument which is negotiable, and might have been negotiated by him. The bill does not allege that the price agreed on was an inadequate one, and the answer states that it was a fair one, and the testimony sustains the answer. Neither does it allege that the the plaintiff was from imbecility of mind, incapable of making a contract, but that his mind was so weak as to expose him to imposition, and importunity by those in whom he had confidence. None such is proved; on the contrary, the evidence proves that the price was a fair one. The plaintiff then is not entitled to the specific relief for which he prayed.
The bill however, charges that no part of the purchase money has been paid, while the answer avers it has all been paid, and that upon a settlement had with the plaintiff, the bond was, by him, the plaintiff, surrendered to the defendant, and he produces it, appended to his bill. The bill is framed in the alternative. If the plaintiff is not entitled to a reconveyance of the land: he prays that the defendant may be decreed to pay him what is due upon the bond, and concludes with a general prayer. The old bill in chancery, did not contain any special statement ofrelief, but only what is called the prayer for general relief, namely, “that your orator may have such relief in the premises as the nature of the case may require, and to the court may seem fit:” but the uniform practice now is to insert a special prayer and to...
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