Kitchen v. . Herring, 42 N.C. 190

Kitchen v. . Herring

42 N.C. 190 | N.C. | 1851

In December, 1846, the defendant, Herring, executed a contract in writing in these words, "Received of John (191) L. Kitchen, payment in full for a certain tract of land lying on the southwest side of Black River, adjoining the lands of William Hofford and Martial, for which I am to give him a good deed, c." The defendant Pridgen wrote the contract and is a subscribing witness. The plaintiff was put into possession in March, 1847. Pridgen united with him; and the other defendant, Musgrove, under a contract with Pridgen, with a large number of hands, commenced cutting down the timber, which constitutes the chief value of the land. Pridgen was the surety of the plaintiff to a note of $325, given payable at three months for the price of the land. In January, Herring executed a deed for the land to Pridgen, and under this title the plaintiff was turned out of possession.

The prayer of the bill is for a specific performance, for an account of the profits and for an injunction.

After the bill was filed, an arrangement was made, by which Musgrove continued his operations in getting timber, and agreed to account with the successful party. The defendants, Herring and Pridgen, allege, that the note was to bear interest from the date, and this clause was omitted by mistake; and that there was an entire mistake in drawing the contract, for that the title was to be made to Pridgen, and not to the plaintiff. They further allege, that the contract was rescinded by mutual consent. These allegations are not sustained by the proof. In regard to the interest — the plaintiff, at the time he tendered the *138 amount of the note and demanded a deed, offered to pay interest for three months, but there is not such an admission of his obligation to pay the interest, as will justify a departure, from the terms of the note. The offer was obviously made to avoid litigation, to buy his peace, and there is no proof of a mistake.

(192) The defendant's counsel insisted, that the contract was void because of its vagueness and uncertainty. This position is untenable. The description is sufficiently certain to identify the land — "that is certain which can be made certain," and for this purpose an enquiry would be ordered, if necessary. But the parties seem to have had no difficulty in this respect; for, it is admitted, that the tract of land which was subject of the contract, had been conveyed by deed to Pridgen, and in that way its identity is established. The description in this contract is similar to that constantly made by the constables in levies upon land, from which sheriffs have no difficulty as to what land to sell, and how to make the deeds.

It was further insisted, that, as it appears by the plaintiff's own showing, that "the land is chiefly valuable on account of the timber," this case does not come within the principle, on which a specific performance is decreed.

The position is new, and the counsel admitted, that there was no authority to sustain it, but he contended with earnestness, that it was so fully sustained by "the reason of the thing," as to justify a departure from a well-settled rule of this Court, under the maxim, cessante rationecessat lex.

The argument failed wholly to prove that "the reason of the thing" called for an exception. The principle in regard to land was adopted, not because it was fertile or rich in minerals, or valuable for timber, but simply because it was land — a favorite and favored subject in England, and every country of the Anglo-Saxon origin. Our Constitution gives to land pre-eminence over every other species of property; and our law, whether administered in Courts of law or of equity, gives to it the same preference. Land, whether rich or poor, cannot be taken to pay debts until the personal property is exhausted. Contracts concerning land must be in writing. Land must be sold at the courthouse, must be conveyed by deeds duly registered, and other instances "too tedious to mention." The principle is, that land is assumed to (193) have a peculiar value, so as to give an equity for a specific performance, without reference to its quality or quantity. The same is assumed as to slaves (Williams v. Howard, 7 N.C. 74), while in regard to other property, less favored, a specific performance will not be decreed, unless there be peculiar circumstances; for, if with the *139 money, an article of the same description can be bought in market — corn, cotton, c., the remedy at law is adequate.

There must be a decree for the plaintiff with costs.

PER CURIAM. Decree accordingly.

First paragraph of headnote. Cited: Henly v. Wilson, 81 N.C. 408;Edwards v. Bowden, 99 N.C. 81; Blow v. Vaughan, 105 N.C. 209; Perry v.Scott, 109 N.C. 382.

Third paragraph of headnote. Cited: Dupre v. Williams, 58 N.C. 104;Barnes v. Barnes, 65 N.C. 263; Cheatham v. Crews, 83 N.C. 317; Paddockv. Davenport, 107 N.C. 716; Knight v. Herring, 111 N.C. 84; Stamper v.Stamper, 121 N.C. 253; Whitted v. Fuquay, 127 N.C. 69.