16 N.C. 30 | N.C. | 1826
Lead Opinion
The facts as set forth in the bill were not varied either by the answer or the testimony; from the latter it appeared, incidentally, that the plaintiff had sued at law upon the covenants in the deed to McConnell, and that the suit was decided against him as late as 1800, 1 N.C. (Taylor's Reports, 82).
When this cause was first opened I thought that the great length of time which elapsed after the eviction, before the filing of this bill, formed a bar; but on reflection I am satisfied that it does not. Lapse of time is matter of defense; and in cases such as this, where lapse of time is of itself no bar, but affords a presumption only of a fact which is a bar; it is not cause for demurrer; but in cases where lapse of time of itself forms a bar, as in cases where the statute of limitations may be pleaded, then it is cause for demurrer, according to the late English decisions, recognized arguendo, in this Court, in Falls v. Torrance,
The only other objection is, Why did not the plaintiff sue on his covenant at law? The answer is that he could not sue in his own name, for in Montgomery's deed to McConnell it is stated that the lot belonged to his daughter; and there being affirmation against affirmation, estoppel against estoppel, no estate passed to McConnell by the deed of bargain and sale. The covenants in the deed were therefore mere personal covenants with McConnell, not annexed to any estate, and did not pass to Nesbit by McConnell's deed to him, as was decided many years ago, at Salisbury, by the Chief Justice, in an action brought on this very deed. Nesbit v.Montgomery,
Nesbit's only remedy, therefore, was in this Court, for McConnell became Nesbit's trustee, as to those covenants, when he conveyed the land to him, and in equity Montgomery was bound to fulfill them to him. As to the agreement to restore double the consideration in case of eviction, we must look upon that as a penalty only, if for no other reason than the one that is expressed in the deed, to wit, that Montgomery shall also pay, over and above double the consideration, all damages which McConnell might sustain upon or on account of an eviction. There is no pretense, therefore, to say that the parties have agreed on a sum as liquidated damages contrary to their express agreement; besides, liquidated damages are favored nowhere, and less in courts of equity than elsewhere.
(33) The master will therefore take an account of the principal and interest, from the time the consideration money was paid to the present time, making the sum mentioned in the deed the amount of principal, and adding 25 per cent to equalize the proclamation money to our present currency. He will also take an account of assets in the hands of the defendant. As great lapse of time has taken place, the master may state any fact which, in his opinion, may tend to diminish the interest, or which the parties may desire; he will also deduct the war interest.
Addendum
This bill seeks to recover a compensation from the executors of Montgomery for the breach of a covenant contained in a deed made by him to McConnell in 1762, for a lot of land in the town of Salisbury, which lot McConnell afterwards sold to the present complainant, who claims the benefit of the said covenants as assignee. A great lapse of time has taken place since a breach was committed, and the delay is not accounted for in the bill; but as this lapse is not relied upon in the answer, nor was insisted on at the hearing, and as the *27 printed report of the case at law between the same parties, upon the same covenant, compared with the time of filing this bill, shows that the complainant has been engaged nearly the whole of the time since 1773 in asserting his right, and that he failed at law because his legal title as assignee was imperfect, we may proceed at once to a consideration of the case upon its real merits.
The covenant contained in Montgomery's deed, so far as it affects the question to be decided is in these words: "And further, it is hereby covenanted, premised, and agreed by the said parties hereunto, that in case the said Mary Montgomery, her heirs or assigns, shall at any time hereafter enter into the hereby bargained premises, so as to dispossess the said William McConnell, his heirs or assigns, or break, determine, or nullify, or make void the hereby bargained premises, (34) that then the said Hugh Montgomery and Mary, his wife, and their heirs or either of them, shall return and pay back double the purchase money, with interest, and pay also for all damages unto the said William McConnell, his heirs or assigns, whatsoever they may suffer thereby."
If the complainant could have recovered at law, and no fixed sum had been agreed on in the deed, the measure of damages would have been the purchase money, viz., £ 60, with interest from 25 April, 1762; and if a recovery had been made according to the sum agreed upon in the deed, viz., double the purchase money and interest, I conceive a court of equity would have relieved upon payment of the first sum. Whatever difficulty there may be in ordinary cases to distinguish between a penalty and liquidated damages, the terms of the covenant have here clearly ascertained that sum to be a penalty; for double the purchase money is not to be repaid as the probable estimate of damage McConnell or his assigns might sustain by an eviction, but it is to be paid in addition to all damages. The parties have not therefore left it to inference or construction, but have fully expressed that the sum is to be paid as a penalty upon Montgomery for not performing his covenants. Under this view, there must be a decree for the complainant for the purchase money, with interest from the date of the deed, and the costs of the suit.
Decree accordingly.
Cited: Robinson v. Lewis,
(35)
