(August Term, 1851.)
A made a parol contract for the purchase of land from B, for which he paid by delivering a horse, and also a bond on one M, which he caused to be made payable to B. M died insolvent, the bond remaining uncollected. Held, on a bill for specific performance or compensation, to which B pleaded the Statute against parol contracts for land, that A was entitled to compensation; that so far as related to the horse, if that had been the only subject of controversy, A would have had no claim to relief in Equity, as he could have had complete redress at law, upon the rescission of the contract; but as he had no legal redress as to the bond, the Court would entertain jurisdiction as to that matter; and thus taking jurisdiction as to part of the case, would take jurisdiction as to the whole and grant the relief prayed for.
Transmitted from the Court of Equity of HAYWOOD, Spring Term, 1851, Settle, J., presiding.
J. W. Woodfin for the plaintiff.
J. Baxter for the defendants.
The parties made a parol contract in March, 1848, whereby the defendant agreed to convey to the plaintiff in fee seventy-three acres of land for the price of $250, and then put him into possession. The defendant at the same time received from the plaintiff a horse at the price of fifty dollars. The bill was filed in February, 1850, and states, that, by the agreement, the residue of the purchase money was to be satisfied by the plaintiff's transferring to the defendant a claim he had by open account on one John N. McGee, who resided in the same neighborhood with the parties, and whose circumstances were all known to the defendant, and that the defendant was to look to McGee alone for the payment thereof, and without any guaranty from the plaintiff: That the plaintiff accordingly authorized the defendant to (287) receive the debt from McGee and give him an acquittance therefor, and the defendant accepted McGee and his debtor for the said sum of $200 in full payment of the purchase money for the land, and discharged therefrom; and that he, the defendant, afterwards came to an arrangement with McGee, whereon the defendant agreed to indulge McGee further, and took McGee's bond in March, 1849, for $200, payable to himself. That at the time of the contract McGee, though somewhat indebted, had considerable property in his possession, and could have been compelled by suit to pay the debt; but, that, the giving his bond to the defendant, McGee died insolvent, whereby the debt has been wholly lost. That the contract between the parties was further, that the defendant should make a deed to the plaintiff, whenever he should be requested; and that, in faith thereof and inasmuch as he had thus fully paid the price of the land, the plaintiff, after being let into possession, made extensive improvements on the premises, and requested the defendant to convey them to him — which the defendant refused, upon the pretense that he was not to make the conveyance until all the purchase money should be paid, and that the same had not been paid, inasmuch as he did not accept McGee's debt in satisfaction of the residue of the purchase money, but agreed only to take it as a further security, so as to give the plaintiff credit for such sums as McGee might pay him thereon; all of which pretenses are false. The prayer is for a decree for a specific performance by a conveyance, or, if by reason of the agreement not being in writing, the plaintiff cannot have that relief, that the defendant be compelled to account for the value of the horse and the amount of McGee's debt, so passed by the plaintiff in the payment, and also satisfy the plaintiff for the value of his improvements.
The answer admits the agreement for the sale of the land at the price of $250, and that the defendant let the plaintiff into immediate possession, and receive in part payment a mare at the price of $50. But it denies, that the contract was in other respects as stated (288) in the bill. And it states, that the agreement was not, that the defendant would make a conveyance whenever requested, but it was, that he might retain the title, as a security for the residue of the purchase money, and he was not to convey, until the whole thereof should be satisfied by negotiable notes made by solvent persons in Haywood County. And further, that the defendant did not agree to take the plaintiff's claim on McGee for $200, in payment of any part of the purchase money, but that when the plaintiff proposed to transfer the claim to him, he, the defendant, positively refused to accept the same as a payment, upon the ground that McGee was insolvent, and so he distinctly informed the plaintiff. The answer denies that the defendant accepted the claim on McGee at all, while it was due on open account, or ever took a bond therefor from McGee; and it states, that when the defendant refused to take the claim, as just mentioned, the plaintiff informed him, that McGee had promised to pay him negotiable notes on the other solvent persons in that county, and proposed to transfer them to the defendant, when they should be received; and the defendant agreed that he would accept such notes, when offered. It is further stated, that the defendant frequently urged the plaintiff to come to a settlement with McGee and get good notes from him and settle with the defendant for the residue of the purchase money, and the plaintiff promised to do so; but, instead thereof, that the plaintiff on 26 December, 1848, took from McGee his bond for $200, payable to the defendant on 1 March, 1849 (which is exhibited), and offered that to the defendant in payment, and the defendant refused to accept it. That thereupon the plaintiff represented to him that McGee had the notes of other persons, which he would give in place of his own, and thereby prevailed on the defendant to take the note for $200 into his possession, and make the exchange with McGee. The answer avers, that (289) the defendant took the bond of McGee for the purpose of endeavoring to get other good notes from him, which, if obtained, he would be willing to take in payment, and for no other purpose whatever; and that, after the bond fell due, he applied to McGee for such notes, but was unable to obtain any, as McGee had become insolvent; and he then offered to return McGee's bond to the plaintiff, having never made any other use of it or claimed it as his own. The answer then insists, as there was no memorandum in writing, signed, c., of the agreement, on the benefit of the Statute making void parol contracts for the sale of land, as if the same were pleaded.
Ellis v. Ellis, when before the Court on the rehearing, and the motion for further directions, 16 N.C. 341 and 398, and Albea v. Griffin, 22 N.C. 9, dispose of all the points in the present case. As a bill for specific performance, it cannot be sustained, and to that extent it must be dismissed, as the defendant insists on reaffirming the contract, under the statute of frauds. In ordinary cases, the same disposition would be made of it, in its alternative aspect of having the alleged payments on account of the purchase money decreed back. As the contract is disaffirmed and void, the plaintiff might, as a matter of course, recover money on it in an action for money had he received, and also recover the horse in trover after a demand; and, as there would be full remedy at law, this Court would not interfere. But, as in Ellis v. Ellis, the jurisdiction to grant the alternative relief arises, in this case, from the peculiar circumstances, which define the extent of the plaintiff's right, and prevent him from having any remedy at law, in respect of a principal part of the claim, that he may (290) justly set up; that is, for the bond of McGee. That was given for a debt from McGee to the plaintiff; but, upon the supposition that it would answer the defendant's purpose, and not foreseeing the state of things subsequently happening, it was taken by the plaintiff, payable to the defendant — so that, in respect of that bond, on which, as both sides state, nothing has been received, the defendant has no legal remedy, and, consequently, must be entitled to relief here. That relief, the plaintiff insists, should be by a decree for the nominal amount of the bond, because the defendant took it as money, and is bound to account for it as money, and because McGee was able to pay it when it fell due, and the defendant made it his own by his laches, in not taking the proper means of enforcing payment. On these points the parties are at issue, and each has taken proofs. When read on the hearing, it did not seem, that the plaintiff had, by any means, satisfactorily established the facts, in either aspect, as alleged by him. But the Court does not consider the proofs at all; for, supposing proofs admissible on this part of the case, after the denial in the answer of the contract, as set forth in the bill; and supposing the proofs to establish the allegation of the bill, respecting McGee's debts and solvency, still the plaintiff could not, upon either ground, have a decree against the defendant, for money in respect of that bond, when the defendant never received any, but the decree must be only for the bond itself, with a special endorsement, without recourse to the defendant. If the defendant should refuse obedience to the decree, that might lay the foundation for holding him liable to make compensation in money for the bond. But that is not to be anticipated, as the answer states, that the defendant never claimed it as his own, and had offered to return it, and he brings it into Court for the plaintiff. The bond is all the defendant got from the plaintiff, and that is all the plaintiff can ask back. It was his folly not to take a deed after, as he alleges, paying for the land, or not to make the contract in an obligatory form, and to leave to the defendant the office of collecting the (291) money from McGee, instead of attending to it himself; and, in the state in which the thing is now brought, he can in equity only get from the defendant the thing the latter received from him. As the plaintiff is entitled to that equity, so as thereby to confer a jurisdiction of a part of the transaction, it is proper the decree should embrace the whole, although in respect of other parts, the plaintiff might have a remedy at law. The plaintiff's equity, then, is to have the bond of McGee, and for payment of the value of the mare received by the defendant with interest thereon, and also the value of the permanent improvements made by him on the premises, before filing the bill, or before he was informed, at any time prior to the filing of the bill, that the defendant would not convey the premises to him under the contract — the plaintiff allowing, or paying to the defendant, such reasonable rents or profits as the plaintiff hath derived from the premises, or as they were worth since the plaintiff took possession, and delivering possession of the premises to the defendant. Unless the parties should agree on those points, there must be a reference to the Clerk, to make those enquiries, and ascertain the balance due from the one party to the other. As it is manifest that the real controversy in the cause was upon the question, who was to bear the loss of McGee's debt, and that has been decided against the plaintiff, he must pay the costs up to this time.
PER CURIAM Ordered accordingly.
Cited: McCracken v. McCraken, 88 N.C. 275, 283; Pendleton v. Dalton, 92 N.C. 192; Tucker v. Markland, 101 N.C. 426; Baker v. Carter, 127 N.C. 95; Luton v. Badham, Ib., 99; Commrs. v. Fry, Ib., 262; McCall v. Zachary, 131 N.C. 468.