53 S.E. 845 | N.C. | 1906
Plaintiff sues for specific performance of a contract for sale of real property. The facts as set forth in the pleadings and found by the jury are: Defendant entered into possession of the locus in (206)quo during 1891, under a contract to purchase, and paid thereon $20. On 13 April, 1895, upon a settlement had, it was found that he owed a balance of $92. The parties thereupon entered into and executed a written agreement, plaintiff promising to pay $2 per month for one year and thereafter $7.50 per quarter until the full amount, with interest, was paid, when defendant agreed to convey the land, being about 2 1/2 acres, to plaintiff. The contract contained the following provisions: "It is covenanted and agreed that if I fail to pay three consecutive *180 monthly payments for the said first twelve months from date, that the amounts theretofore paid shall be forfeited, and if, after having made all the payments for said twelve months, I shall fail to pay two consecutive quarterly payments, then the amount theretofore paid shall be forfeited." The plaintiff continued in possession of the land and was at the time of bringing this action in possession thereof. Plaintiff did not offer to make the monthly and quarterly payments under the contract to the defendant or to his agent in accordance with the terms thereof. The failure to make said payments was not caused by any act of the defendant or his agent. During 1896 plaintiff offered to pay the total amount due under contract, and demanded that defendant execute a deed for said land; defendant declined to accept said amount and make the deed. That the offer was repeated during 1897 and the deed again demanded, which defendant again refused. The value of the land in 1896 was $100 and in 1897 $500. On the date of the summons herein, 23 July, 1904, the value of the land was $1,000.
There was evidence tending to show that defendant was out of the State a portion of the time and that there was some misunderstanding in regard to the authority of his attorney to receive payments. (207) Upon the admission in the appeal and the verdict of the jury embodying the foregoing facts, the defendant moved for judgment, that plaintiff was not entitled to specific performance, etc. Motion was refused, and defendant excepted. Thereupon his Honor rendered judgment that the defendant upon payment by the plaintiff of the sum of $92, with interest thereon from the date of the contract, execute and deliver to the plaintiff a deed in fee for the lands mentioned in the complaint, in accordance with the terms of the contract. The defendant excepted and appealed.
It is well settled by numerous decisions of this Court that when contracts of the character set out in the record are entered into, the relation established between the parties is in many respects similar to that of mortgagor and mortgagee. The vendor is treated as holding the legal title as security for the payment of the purchase money, and upon failure to pay may proceed to have the land subjected by sale for that purpose.Derr v. Dellinger,
No error.
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