| N.C. | Jun 5, 1845
This was an action upon a covenant, of which the following is a copy:
Robert Love and Ninian Edmonston agree thus as respects the tract of land on which said Edmonston lives, called the Probe Bottom, which has been valued to the said R. Love under a contract with James Lockhart, and said Edmonston agrees thus with the said Love, that in case the said Lockhart will unencumber the said tract of land from a mortgage to James Greenlee, he will well and truly pay to the said R. Love, agreeably to the said valuation, $600 in three annual payments, with interest on the same; but if otherwise, that the said James Lockhart will not come forward and unencumber the said land, then the (355) said Edmonston will relinquish all claim from any agreement between the said Love and Edmonston, and that the said Edmonston will pay the said Love rent for the present year, provided the said Love hold on to his agreement with James Lockhart. In witness whereof, the said Robert Love and the said Ninian Edmonston have hereunto set their hands and seals this 11 April, 1829.
R. LOVE, [SEAL] N. EDMONSTON,[SEAL]
The pleas were, "Covenants performed, and no breach." The sole question on the trial was whether there was a condition precedent which *255 the plaintiff was bound to perform before he could bring his action, in that part of the covenant which says, "provided he hold on to his agreement with said Lockhart."
A verdict was taken for the plaintiff, subject to the opinion of the court upon this point reserved. The court refused to set aside the verdict, and rendered judgment for the plaintiff, from which the defendant appealed. The question is rather one of evidence as to the side from which it should come, than of pleading or of the construction of the contract. As far as these parties bargained for a sale of land to the defendant, it is to be understood that the bargain was at an end by the failure of Lockhart (Love's vendor) to remove his encumbrance on the land; for the rent, now sued for, was to be due only in the event that Edmonston's purchase was not completed, and the case states that the only objection to the plaintiff's recovery of the rent was that the plaintiff did not show he and Lockhart still held to their bargain for the land. With a view to that question, the case may be thus stated: The plaintiff, having made an executory contract with Lockhart for the land, leased it to the defendant for one year at a certain rent, with a stipulation, however, after reciting the nature of the plaintiff's title, that the rent was to be paid to the plaintiff, "provided the said Love hold (356) on to his agreement with Lockhart." The plain meaning of that stipulation is that, as the rent ought not to belong to Love, but ought to go to Lockhart in case their contract should be rescinded, the defendant should not be bound to pay it to Love, notwithstanding he took his lease from him, if in fact and truth Love's purchase should be rescinded. Then the question is whether it be incumbent on the plaintiff to show by affirmative or substantive proof that the contract between him and Lockhart still subsists, or whether, if such be the fact, the defendant ought not to show that it had been rescinded by the act of one or both of the parties. Upon that point our opinion accords with that of his Honor, that the onus was on the defendant, for the reason that when a contract is once made between parties it binds and is legally presumed to subsist until it be shown to have been performed or rescinded. Without something appearing to the contrary, the plaintiff must be assumed to have held on, and to have been held on, to his agreement with Lockhart.
PER CURIAM. No error. *256
(357)