Hicks v. . King

64 S.E. 125, 150 N.C. 370, 1909 N.C. LEXIS 58

Opinion

Clark, C. J.

The appeal presents practically but one point. The plaintiff contends that the court should have held that punctual payment of rent was of the essence of the contract, and that upon 'default the plaintiff was entitled, to re-enter and take possession. But this would ignore the other features of the contract.

This case is almost identical with Crinkley v. Egerton, 113 N. C., 444, which held that as long as the lessor treated the lease as continuing he was entitled as lessor to the landlord’s lien for rent; biit that whenever he put an end to it by seeking to resume possession the defendant could assert his equity under the, contract to convey, and could cause the land to be sold. Similar contracts have been construed to be contracts to convey. Puffer v. Lucas, 112 N. C., 377; Clark v. Hill, 117 N. C., 11; Barrington v. Skinner, ib., 47; Jones v. Jones, ib., 254; Manufacturing Co. v. Gray, 121 N. C., 168; Wilcox v. Cherry, 123 N. C., 79; Thomas v. Cooksey, 130 N. C., 148; Hamilton v. Highlands, 144 N. C., 283.

When, as here, the full period for installments has passed at the date of the judgment, it is necessary only to deduct the payments made and direct a sale of the property to pay the balance due. When there are installments which have not fallen due, the present value' only of such should be charged against the purchaser. Contracts for sale on installments are similar to mortgages. In neither is the equity destroyed by the stipulation for prompt payment, but the debtor is entitled to have the balance ascertained and a sale ordered} and "to receive surplus, if any.

Affirmed.