43 N.C. 310 | N.C. | 1852
So much of the case as it is necessary to state in order to present the only question made at this stage of the proceedings is as follows:
In 1849 the plaintiff contracted to sell to the defendant a tract of land, and executed a bond to make title on or before 1 January, 1851. The defendant went into possession. The plaintiff had not perfected his title, and was consequently unable to make title to the defendant on 1 January, 1851, whereupon the defendant commenced an action at law upon the bond, and before the trial the plaintiff perfected his title, tendered a deed to the defendant, and offered to pay the costs of the action at law. This was declined, and the defendant took a judgment. *201
The bill is for a specific performance of the contract. There is an injunction in reference to the judgment at law. Upon the coming in of the answer, a motion to dissolve was disallowed, and the defendant appealed.
The answer insists that as there was a breach of the condition of the bond, the defendant had his election to sue at law and recover damages, or file a bill for a specific performance, and that having elected to go for damages, the plaintiff had no equity against his (311) judgment. It further insists that if the plaintiff has an equity, he should, beside the costs of the action at law, make compensation to the defendant for his trouble and entire expenses.
Specific performance is one of the most extensive and most beneficial heads of equity jurisdiction. It is based upon a clear, simple, and broad ground; that is, that in a contract of sale, compensation of damages is not an adequate remedy for a breach and a fair and even measure, as justice requires that the vendor should take, and that the vendee should take the thing bargained for. This principle applies with perfect mutuality, while on the one hand the vendee is not obliged to take compensation in damages, but may insist upon having the thing contracted for; so, on the other, the vendor is not obliged to make compensation in damages, but may insist upon the vendee's taking the thing contracted for; consequently, there is no foundation for the idea that after the breach the vendee has an election to sue for damages at law or file a bill for a specific performance, using the term "election" in the sense of the vendor's being bound by it. Anciently, the vendee was required to establish the contract and a breach thereof by an action before he was at liberty to file a bill for specific performance; by the modern authorities, he can file a bill at once; and by all of the authorities, the remedy in equity is held to be mutual, so that either vendee or vendor may insist upon a specific performance at any time before the contract is extinguished by the payment of the damages, for the reason that a specific performance is the most fair and even measure of justice.
It is said the plaintiff was bound to make title on 1 January. That is true, but as a general rule in equity, time is not the essence of a contract, and is therefore not material, except so far as costs may be concerned. It is almost an invariable practice for courts of (312) equity to allow vendors "time" to perfect title. In the case under consideration, it is clear that time was not of "the essence," for the defendant is let into possession in 1849, and his possession is not interrupted; so it made no substantial difference whether he got title in January or August. Again, it is said the plaintiff being in default cannot in conscience insist that the defendant shall forego his judgment at law and take the land without making full compensation. That *202 is true, and the question is, What is full compensation? So far as we can see, in the present case, it is the amount of the costs of the action at law. We can notice no costs except such as are provided for and allowed by statute. We are not at liberty to have reference to the private contracts of the defendant. There is
PER CURIAM. No error.
Cited: Welborn v. Sechrist,
(313)
