Williams v. Whiting

• Decision Date: 28 February 1885
• Citation: 92 N.C. 683
• Court: North Carolina Supreme Court
• Parties: WILLIAMS, BLACK & CO. v. MARY A. WHITING.

92 N.C. 683

WILLIAMS, BLACK & CO.

v.MARY A. WHITING.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL

ACTION, heard upon exceptions to the report of a referee, before Gudger, Judge, at Fall Term, 1884, of EDGECOMBE Superior Court.

There was judgment for the plaintiffs, and the defendant appealed.

Messrs. Connor & Woodard, for the plaintiffs .

Messrs. Jos. J. Martin, David Bell and Walter Clark, for the defendant .

SMITH, C. J.

On January 2d, 1878, the plaintiffs constituting the party of the first part, and the defendant, the party of the second part, all residents of the city of New York, entered into an agreement under their several seals, wherein the former, in consideration of thirty-six thousand dollars to be paid, as thereinafter mentioned, covenant to convey to the latter all their right, title, and interest, in a large and valuable plantation in the county of Edgecombe, described by metes and bounds, lying on the side of the track of the Wilmington and Weldon Railroad, and estimated to contain eleven hundred and five and one-half acres, and also certain articles of personal property, and such others as were then on the land.

The defendant covenants on her part, “to pay to the plaintiffs the said sum of thirty-six thousand dollars and interest, as evidenced by certain promissory notes of even date therewith as follows: Four thousand dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and seventy-eight; four thousand dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and seventy-nine; four thousand dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and eighty; four thousand dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and eighty-one; five thousand dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and eighty-two; seven thousand five hundred dollars, and interest thereon from date, on the thirty-first day of December, one thousand eight hundred and eighty-four.”

“And the said parties of the first part agree that when the first five of said payments shall have been made and completed, to deliver to said party of the second part, her heirs or assigns, a good and sufficient deed of conveyance of their title to the said property described herein, and free and clear from the mortgage now covering said property for the sum of three thousand dollars, with covenants against the acts of the grantors, upon three days' notice in writing, at such time and place in the city of New York as the said party of the second part may appoint, and to make, execute and deliver such other instruments of release and discharge, as the said party of the second part, her heirs or assigns, or her counsel may request, and upon the delivery of said deed, the said party of the second part shall make, execute and deliver to the parties of the first part, their heirs, executors, administrators and assigns, her certain indenture of mortgage, conveying all the property herein described to secure to them or their heirs or assigns the payment of the balance of said sum, which said mortgage shall provide that upon default being made in the payment of any of the sums thereby secured to be paid, and such default continue for the space of thirty days, that then the whole principal sum shall become due and payable, and the parties of the first part, upon ninety days' notice that they will exercise the power of sale contained in the mortgage, shall be entitled to foreclose said mortgage by advertisement for the space of thirty days, at the court-house door in the town of Tarboro, and three other public places in Edgecombe county, and without the necessity of bringing a regular suit to foreclose the same. It is also agreed between the parties, that the party of the second part, or her assigns, may, subject to the covenants hereinafter set forth, immediately enter upon and take possession of all of the property described therein, as the tenant of the parties of the first part. And it was understood and agreed between the parties that in case the party of the second part should make default in the payment of either of the said first five instalments as they each became due and payable, then the parties of the first part should be at liberty to annul and make void the contract of sale and treat the party of the second part as tenant for the year immediately preceding; and in that event the parties of the first part should be entitled to seventy bales of good merchantable lint cotton as rent for that year, and as a security for the payment of said rent, the party of the second part agreed that the title of all the crops made on said land should remain and continue in the parties of the first part until the instalment of each of the five years should be fully paid and discharged. It was further covenanted and agreed that the party of the second part should faithfully ship, or cause to be shipped, to the parties of the first part, at the city of New York, all the cotton that should be grown or matured on said plantation during each of the said five years, to be by the parties of the first part sold and the proceeds thereof applied by them in the satisfaction and payment of the notes of the party of the second part falling due in each of those years respectively, and the balance, if any, of such proceeds should be paid over to the party of the second part. And it was covenanted and agreed that should default be made in the payment of any of said first five notes at the maturity thereof, and said default continue for the space of thirty days, that then, that is to say after the expiration of said thirty days, it should be lawful for the parties of the first part, or their appointees, to enter upon and repossess themselves of all of the property described therein, and eject any and all persons from the property without further process, manner or proceeding, it being the meaning and intent of the parties thereto that upon such default being made in the payment of either of said first five mentioned notes, that the parties of the first part should be entitled to the immediate possession of all the said described property without legal proceedings. It was further covenanted and agreed that the parties of the second part, as a part of the consideration, should pay all taxes and assessments of every kind whatsoever, which should be levied or imposed on said property after the date of the agreement, and should deliver immediately to the parties of the first part the bills and receipts showing such payments to have been made. It was further covenanted and agreed that the party of the second part, as a part of the consideration, should keep all of said property insured in good and responsible companies in the sum of twenty-five hundred dollars for the benefit of the parties of the first part, and to deliver said policies of insurance to the parties of the first part. And the said party of the second part further covenants and agrees, that should the said property described, for any cause, revert to the parties of first part, that she will forthwith deliver up and return to them all the personal property in good order and condition, reasonable wear and tear excepted, and where such personal property shall necessarily be used up or consumed, that she will supply the deficiency with other property of the same kind, quantity and value.”

“And whereas, there are now pending in the Supreme Court of the State of New York certain actions wherein Brink & Estes are plaintiffs and certain insurance companies are defendants, one-half of the proceeds whereof are by agreement to be paid to the parties of the first part hereto, now it is covenanted and agreed by the parties of the first part that any and all sums by them received from said actions shall be applied for the benefit of the party of the second part in the payment of the third, fourth and fifth of said notes, or so much thereof as may be possible. And it is hereby further covenanted and agreed between the parties hereto, that all the covenants and agreements herein contained shall be obligatory upon and bind the heirs, executors, administrators or assigns of each and all of said parties.”

The plaintiffs allege in their complaint that there remains unpaid a large sum due upon the first five notes, stated to be $13,776 99/100, with interest at the stipulated rate of seven per cent. from January 22d, 1883; while they have on hand seventy-eight bales of cotton of the estimated value of $2,964.00, the proceeds of which, when sold, are to be applied in reduction of the sum stated; and that nothing has been paid on the other notes.

The plaintiffs demand judgment for what is due upon the notes, and a sale of the land for the satisfaction of the indebtedness. The answer does not controvert the allegations of the making the contract and executing the notes contained in the complaint, but avers that many payments have been made;...