Hoke, J.,
after stating the case: The heirs at law and personal representatives of 33. C. Alston, wife of P. G. Alston, the original plaintiff, having been made parties plaintiff, it may
be that on the facts set out in the complaint and indicated in the testimony, that these heirs might successfully assert a right to redeem the property, either on the idea of a parol trust or more simply by holding that under all the facts and circumstances suggested, the relationship of mortgagor and mortgagee had never terminated between them and Thomas Connell, the ancestor of the defendants, and under whom they claim. This position, however, is not open to the plaintiffs in the present condition of the record, for the reason that the suit was ‘originally instituted by P. G. Alston, and complaint filed, seeking to enforce his rights under his written agreement of date December 5, 1898, and under which Thomas Connell obligates himself to convey the- property. The heirs at law of B. C. Alston make themselves parties plaintiff and seek the same relief, and while the pleadings set forth the entire facts and some evidence is offered tending to sustain a claim in behalf of these heirs, the issues framed and passed upon are not decisive of those rights, but are addressed to the question of this written agreement and the facts especially bearing thereon, and are only determinative of the interest arising thereunder. The rights of the parties therefore are considered as they may arise upon this written paper and the issues determined in reference to the same.
On that question the court is of opinión that this paper amounts' only to an option by which Thomas Connell, on December 5, 1898, bound himself to P. G. Alston to convey the 600 acre Tusculum farm on the payment to him of '$3,502 at any time previous to December 1, 1899. P. G. Alston had never taken the place of debtor to Thomas Con-nell, and neither in this nor any other paper, so far as we can discover, has P. G. Alston ever obligated himself to pay this or any other sum. There is consideration for the agreement in permitting Thomas Connell to proceed with the sale and buy the property at $2,000, in apparent violation of the agreement between himself and P. G. and Betty Alston, and
other considerations might be suggested; but P. G. Alston, not having provided to pay, we agree with the defendants, that this was a unilateral contract, commonly called “an option,” a proposition to sell, binding and irrevocable by the owner till the stipulated time expired, but in which, time was of the essence under ordinary circumstances, and in cases like the present, requiring payment of the price as a condition precedent. 21 Am. & Eng. Enc. (2 Ed.), 931, and authorities cited. We do not conclude, however, with the defendants that the plaintiffs are barred of relief by reason of the statute of frauds; for, if it be conceded that this statute under ordinary conditions would avail the defendants, the court is of opinion that on this paper and the facts established by the verdict the defendants are estopped from pleading the statute and from denying their obligation under the contract on that ground.
These facts, so established, declare that the plaintiff had arranged or was arranging to raise the money within the time required by the option, when he was notified and requested by the defendant that a postponement was desired for a year, till January 1, 1901, and the plaintiff agreed to the proposition. Within the time fixed by the postponement, the plaintiff went to the defendant with the money, tendering the amount required by the agreement and the same was refused. The plaintiff, having consented to the delay at the request of Thomas Connéll, will be taken to have been ready and willing to perform at the time stipulated in the written agreement; having tendered the amount due within the period fixed by the postponement, he is in no default, and the extension having been given at Thomas Connell’s request and for his convenience, when the extended agreement itself and all the circumstances clearly implied that he regarded it as a valid and binding contract and that he intended to live up to its terms, the law will not permit him now to repudiate its obligations, invoke for his protection the statute of frauds
and defeat the plaintiff’s recovery, wbo bas forborne a timely performance by reason of Tbomas Connell’s request and in reasonable reliance on bis assurance.
This position is in accord with sound principles of justice and is well sustained by authority. In
Hickman v.
Haines, Law Reports, 10 C. P., at p. 603, it is said: “The proposition that one party to a contract should thus discharge himself from his own obligations by inducing the other party to give him time for their performance is to say the least very startling, and if well founded will enable the defendants in this case to make use of the statute of frauds, not to prevent a fraud upon themselves, but to commit a fraud upon the plaintiff. It need hardly be said that there must be some very plain enactment or strong authority to force the court to countenance such a doctrine.” Again, at page 605: “The result of these cases appears to be that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to do by the Statute of Frauds. But, so far as this principle has any application to the present case, it appears to us rather to preclude the defendants from setting up an agreement to enlarge 'the time for delivery in answer to the plaintiff’s demand, than to prevent the plaintiff from suing on the original contract for 'a breach of it.” And at page 601: “In conclusion we think that, although the plaintiff assented to the defendant’s request not to deliver the 25 tons of iron in question in June, he was in truth ready and willing then to deliver them, and that the defendants are at all events estopped from averring the contrary.”
In
Clarno v. Greyson,
30 Oregon, 111, it is said: “That an owner of land, who would insist upon strict performance by a prospective purchaser as a condition precedent to an action by the latter for the specific performance of an option to purchase, must not himself be the cause of the breach;” and in the opinion of the court by
Wolverton, J.,
at p.
121,
it is said:
“Another proposition insisted upon, which is sound in law and based on good morals, is that he who would insist on strict performance must himself not be the cause of the breach. His own wrong can never operate under the sanction of law to his advantage. This may be regarded as fundamental and no authorities are necessary to support it.”
In
Barton v. Gray,
57 Mich., 630, it is held that “The defense urged is not open to defendant for another reason: 'No person can be heard to complain of an injury caused by the act or conduct of a party to which he has consented, and no one who causes or sanctions the breach of an agreement can recover damages for its non-performance or interpose it as a defense to an action upon the contract.’ ”
In
Thompson v. Poor,
147 N. Y., at p. 409,
Andrews, J.,
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Hoke, J.,
after stating the case: The heirs at law and personal representatives of 33. C. Alston, wife of P. G. Alston, the original plaintiff, having been made parties plaintiff, it may
be that on the facts set out in the complaint and indicated in the testimony, that these heirs might successfully assert a right to redeem the property, either on the idea of a parol trust or more simply by holding that under all the facts and circumstances suggested, the relationship of mortgagor and mortgagee had never terminated between them and Thomas Connell, the ancestor of the defendants, and under whom they claim. This position, however, is not open to the plaintiffs in the present condition of the record, for the reason that the suit was ‘originally instituted by P. G. Alston, and complaint filed, seeking to enforce his rights under his written agreement of date December 5, 1898, and under which Thomas Connell obligates himself to convey the- property. The heirs at law of B. C. Alston make themselves parties plaintiff and seek the same relief, and while the pleadings set forth the entire facts and some evidence is offered tending to sustain a claim in behalf of these heirs, the issues framed and passed upon are not decisive of those rights, but are addressed to the question of this written agreement and the facts especially bearing thereon, and are only determinative of the interest arising thereunder. The rights of the parties therefore are considered as they may arise upon this written paper and the issues determined in reference to the same.
On that question the court is of opinión that this paper amounts' only to an option by which Thomas Connell, on December 5, 1898, bound himself to P. G. Alston to convey the 600 acre Tusculum farm on the payment to him of '$3,502 at any time previous to December 1, 1899. P. G. Alston had never taken the place of debtor to Thomas Con-nell, and neither in this nor any other paper, so far as we can discover, has P. G. Alston ever obligated himself to pay this or any other sum. There is consideration for the agreement in permitting Thomas Connell to proceed with the sale and buy the property at $2,000, in apparent violation of the agreement between himself and P. G. and Betty Alston, and
other considerations might be suggested; but P. G. Alston, not having provided to pay, we agree with the defendants, that this was a unilateral contract, commonly called “an option,” a proposition to sell, binding and irrevocable by the owner till the stipulated time expired, but in which, time was of the essence under ordinary circumstances, and in cases like the present, requiring payment of the price as a condition precedent. 21 Am. & Eng. Enc. (2 Ed.), 931, and authorities cited. We do not conclude, however, with the defendants that the plaintiffs are barred of relief by reason of the statute of frauds; for, if it be conceded that this statute under ordinary conditions would avail the defendants, the court is of opinion that on this paper and the facts established by the verdict the defendants are estopped from pleading the statute and from denying their obligation under the contract on that ground.
These facts, so established, declare that the plaintiff had arranged or was arranging to raise the money within the time required by the option, when he was notified and requested by the defendant that a postponement was desired for a year, till January 1, 1901, and the plaintiff agreed to the proposition. Within the time fixed by the postponement, the plaintiff went to the defendant with the money, tendering the amount required by the agreement and the same was refused. The plaintiff, having consented to the delay at the request of Thomas Connéll, will be taken to have been ready and willing to perform at the time stipulated in the written agreement; having tendered the amount due within the period fixed by the postponement, he is in no default, and the extension having been given at Thomas Connell’s request and for his convenience, when the extended agreement itself and all the circumstances clearly implied that he regarded it as a valid and binding contract and that he intended to live up to its terms, the law will not permit him now to repudiate its obligations, invoke for his protection the statute of frauds
and defeat the plaintiff’s recovery, wbo bas forborne a timely performance by reason of Tbomas Connell’s request and in reasonable reliance on bis assurance.
This position is in accord with sound principles of justice and is well sustained by authority. In
Hickman v.
Haines, Law Reports, 10 C. P., at p. 603, it is said: “The proposition that one party to a contract should thus discharge himself from his own obligations by inducing the other party to give him time for their performance is to say the least very startling, and if well founded will enable the defendants in this case to make use of the statute of frauds, not to prevent a fraud upon themselves, but to commit a fraud upon the plaintiff. It need hardly be said that there must be some very plain enactment or strong authority to force the court to countenance such a doctrine.” Again, at page 605: “The result of these cases appears to be that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to do by the Statute of Frauds. But, so far as this principle has any application to the present case, it appears to us rather to preclude the defendants from setting up an agreement to enlarge 'the time for delivery in answer to the plaintiff’s demand, than to prevent the plaintiff from suing on the original contract for 'a breach of it.” And at page 601: “In conclusion we think that, although the plaintiff assented to the defendant’s request not to deliver the 25 tons of iron in question in June, he was in truth ready and willing then to deliver them, and that the defendants are at all events estopped from averring the contrary.”
In
Clarno v. Greyson,
30 Oregon, 111, it is said: “That an owner of land, who would insist upon strict performance by a prospective purchaser as a condition precedent to an action by the latter for the specific performance of an option to purchase, must not himself be the cause of the breach;” and in the opinion of the court by
Wolverton, J.,
at p.
121,
it is said:
“Another proposition insisted upon, which is sound in law and based on good morals, is that he who would insist on strict performance must himself not be the cause of the breach. His own wrong can never operate under the sanction of law to his advantage. This may be regarded as fundamental and no authorities are necessary to support it.”
In
Barton v. Gray,
57 Mich., 630, it is held that “The defense urged is not open to defendant for another reason: 'No person can be heard to complain of an injury caused by the act or conduct of a party to which he has consented, and no one who causes or sanctions the breach of an agreement can recover damages for its non-performance or interpose it as a defense to an action upon the contract.’ ”
In
Thompson v. Poor,
147 N. Y., at p. 409,
Andrews, J.,
says: “It makes no difference, as we contend, what the character of the original contract may be — whether one within or without the statute of frauds — the rule is well understood that if there is forbearance at the request of a party, the latter is precluded from insisting on a performance at the time originally fixed by the contract as a period for action.”
The case of
Sheridan v. Nation,
159 Mo., 54, is very similar in principle to the one before us, and the opinion also finds support in
Swain v. Seamans,
76 U. S., 254. A line of cases in onr State in reference to renewing a contract obligation, barred by the statute of limitations, has strong analogy to the decision we now make. The statute provides that such an obligation can only be renewed by a writing signed by the party charged. In
Haymore v. Commissioners,
85 N. C., 268, it is held that “The defendants will not be allowed to set up the statute of limitations in bar of the plaintiff’s claim, when the delay, which would otherwise give operation to the statute, has been induced by the request of the defendants expressing or implying their engagement not to plead it.” There are many other authorities with us to like effect.
We bold that on principle and authority, the defendants are estopped from pleading the statute of frauds in this case or from denying their obligation under the contract, and the plaintiffs are entitled to the decree and specific performance as prayed for in the complaint.
It has been suggested that the estoppel is not pleaded, but this suggestion is without force. There is some doubt if a plaintiff is required to plead an estoppel in order to avail himself of it except in reply to a counterclaim.
Stancill v. James,
126 N. C., 190. But the more complete answer is that all the facts which go to make out the estoppel are set out. Everything does appear in the pleading which goes to make out this position except simply claiming it as an estop-pel in terms, and this is not of the substance.
There is no reversible error in the record and the judgment below is
Affirmed.
Clark, C. J., did not sit on the hearing of this appeal.