Opinion
(December Term, 1859.)
1. Where a party, who had covenanted to convey a tract of land, and given possession and taken bonds for the purchase money, got back the possession on a bill for a specific performance, it was Held that he was liable for profits he had made, or reasonably might have made, while in possession.
2. Where a party made a bond for title, and afterwards sold the land for an advanced price, and made title to another, so that he could not perform his contract specifically, it was Held that he was chargeable with the price received on the second sale, with interest.
CAUSE removed from the Court of Equity of GASTON.
Fowle for plaintiffs.
Hoke and Jones for defendants.
The bill is filed to compel a specific performance of a contract, in writing, by the defendants Stowe to convey to the plaintiffs' ancestor, Levi W. Sugg, a tract of land described in the pleadings. The contract was entered into on 20 May, 1842, and bound the defendant Stowe to make title to the land in question whenever the said Sugg should pay to him $600; and to secure that sum, he took from Sugg three several bonds of $200 each, the first payable on 1 October, 1842, and the other two at one and two years thereafter. Sugg entered into (127) possession and paid the first bond of $200 at maturity. He also made a payment on the second bond of $100; and having died in 1844, no more of the purchase money has been paid. The plaintiffs are the children and heirs at law of Levi W. Sugg, and were all infants when their father died, and were still under age when this suit was brought. On the death of Sugg, one Grissom administered on his estate, and the estate being totally insolvent and there being no hope of the defendant's getting the remainder of his money out of that estate, it was arranged between Stowe and the said Grissom that the contract should be abandoned, on which Stowe, in 1846, took possession of the land and got possession of the bond for title. Stowe kept possession of the land until the year 1854, and then sold and conveyed it to the defendant Harrison for the sum of $650. Harrison, at the time of his purchase, had no knowledge of the plaintiffs' claim.
The defendant Stowe says in his answer that the land was greatly damaged by the mismanagement of the plaintiffs' ancestor and his widow by cutting down timber, permitting the fences to go down, and by bad cultivation, and that in order to make it bring the price he got for it he had to expend large sums in its restoration, and that having been obliged to take it back to save his debt, and considering the contract as having been abandoned, and having sold it bona fide, he cannot now specifically perform the contract. He relies on the length of time, also, as an abandonment of the plaintiffs' equity. Harrison answered that he had no notice of plaintiffs' equity.
There was replication to the defendants' answer and proofs taken, and the cause being set down for hearing was sent to this Court.
Cole v. Tyson, 43 N.C. 170, is an authority directly in point to establish the equity of the plaintiffs as against the defendant Stowe to a decree for the specific performance of the (128) contract and to charge him with the profits he made, or might by reasonable diligence have made, during the time he was in possession, and also to subject him to the costs of the plaintiff.
Taylor v. Kelly, 56 N.C. 240, is an authority directly in point to establish the equity of the plaintiffs to follow the fund in the hands of Stowe and to charge him with the price he received for the land from the other defendant, Harrison, with interest, subject to a deduction for such part of the original purchase money which was not paid by Sugg, the ancestor of the plaintiffs. The administrator had no authority to surrender the title bond or to rescind the contract, and the infancy of the plaintiffs prevented any presumption of an abandonment of their equity arising by the lapse of time after the death of their ancestor, i. e., in 1844, until the filing of the bill.
In respect to the defendant Harrison, the bill must be dismissed, as he purchased of Stowe, who was in possession and is protected in the enjoyment of the land by the fact of being a purchaser for valuable consideration without notice of the equity of the plaintiffs.
PER CURIAM. Decree for an account as against the defendant Stowe, with all costs, including those of the defendant Harrison.
Cited: White v. Butcher, 59 N.C. 234; Few v. Whittington, 72 N.C. 325; Swepson v. Johnston, 84 N.C. 454.
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