| N.C. | Feb 15, 1891
The contract of sale of the land in question between the son of the feme plaintiff and the defendant, as embodied in the bond for title and the notes for the purchase-money, had the effect to put the equitable title to the land in the son. The defendant retained the legal title as security for the purchase-money, and in trust for the son, the vendee, to be conveyed to him when and as soon as the purchase-money should be paid. Winborn v. Gorrell, 3 Ired. Eq., 117; Deer v. Bellinger, 75 N.C., 300" court="N.C." date_filed="1876-06-05" href="https://app.midpage.ai/document/derr-v--dellinger-3670841?utm_source=webapp" opinion_id="3670841">75 N. C., 300; Hinsdale v. Thornton, id., 381; Bank v. Clapp, 76 N. C., 48.
Granting, as contended _ by the defendant, that the feme plaintiff had no connection with the contract of the sale of the land just mentioned to her son, except as surety to the notes for the purchase-money, still she purchased from the latter for a valuable and sufficient consideration an estate for her life or widowhood in the land, the legal title to be made to her by her son when and as soon as he should get the same from the defendant. That she had made such contract with her son, the defendant well knew; he had notice
The feme plaintiff was not liable for the balance of the purchase-money as surety, because she was discharged from such liability when the defendant surrendered the notes therefor and extended the tim'e and took mortgages of the land to secure the payment of the same. Such surrender of the notes and entire change of the character of the debt, and the new security for the same, had the effect to discharge her liability as surety. This, however, did not relieve the land from the burden of the balance of the purchase-money, because the defendant was not bound to part with the legal title, nor did he intend to do so, until the same should be paid. When he took a mortgage of the land to secure this balance, he simply changed the'shape of his security. Moreover, it would be inequitable for the feme plaintiff to get the legal title to the estate she so purchased before the balance
The defendant could not burden the land in question with a debt due to him from the son mentioned on any account other than that for the purchase-money thereof, by mortgage or otherwise, to the prejudice-of the feme plaintiff in the respects under consideration, nor can he reasonably complain that he could not, because he took the mortgages with knowledge and notice of her equitable estate and right to land, without her knowledge and consent. Lynch v. Gibson, Taylor’s N. C. Term Rep., 244; Pearson v. Daniel, 2 Dev. & Bat. Eq., 360; Maxwell v. Wallace, Busbee Eq., 251; Rutledge v. Smith, ibid., 283; Shaver v. Shoemaker, Phil. Eq., 327; Staton v. Davenport, 95 N.C., 11" court="N.C." date_filed="1886-10-15" href="https://app.midpage.ai/document/staton-v-davenport-6692852?utm_source=webapp" opinion_id="6692852">95 N. C., 11.
Nor was the feme plaintiff’s equitable estate and interest in the land, as such, chargeable with the balance of the purchase-money due the defendant. She did not owe it, nor, as we have seen, was she liable for it as surety, if that could at all alter the case in this respect. She did not purchase her equitable estate from the defendant, but from her son. She has no relation in the matter with the former, who might sell the land to pay the purchase-money, or any part of it, if need be, but he would not sell it as that of the feme plaintiff, nor could he so sell it as to charge her interest specially in order to relieve or disburden that of her son. She is not debtor to him. He has no demand against her for the purchase-money. Pie has simply the right to sell the land, or some part of it, if need be, to pay the balance of the purchase-money, without reference to her estate therein, and as if she had none. The Court, therefore, erroneously adjudged
The exceptions of the defendant are not well founded. There was evidence to warrant the instruction to the jury complained of, and we think it sufficiently embraced that specially asked for by the defendant. The Court suggested two aspects of the evidence, and the jury could readily appty it without directing their attention to a particular view of part of it.
There was no ground for the second exception. This is not an action, in any view of it, to remove a cloud upon, the feme plaintiff’s title. Its purpose is to compel the defendant who conveyed the legal title to the land in question to her co-plaintiff and then lent him large sums of money and took mortgages of the land from him to secure the same and the balance of the purchase-money, with notice of her equitable estate and rights in and to the land, to convey to her, under the circumstances, the legal title to the same, and further, under the circumstances, if need be, to sell the land to pay the balance of the purchase-money, and to the end she may obtain such relief as she may be entitled to have.
Nor is the feme plaintiff’s right to sue barred by any statute of limitation. Her right to have the legal title to-her equitable estate in the land does not arise until the purchase-money shall be paid, and it has not yet been paid. This action is equitable in its nature, and its chief purpose is to enforce an equitable right of the feme plaintiff to have
What we have said disposes of both appeals.
There is error in the plaintiff’s appeal, and no error in that of the defendant.
The judgment appealed from must be modified as directed in this opinion, and, so modified, affirmed.
To that end, let this opinion be certified' to the Superior Court. It is so ordered.