Jones v. . Jones

62 S.E. 417, 148 N.C. 358, 1908 N.C. LEXIS 204

• Court: Supreme Court of North Carolina
• Decided: September 30, 1908
• Status: Published

Opinion

CoNNOR, J.

The learned counsel for defendants contends that when the plaintiff failed to pay the purchase money on 1 October, 1906, his right to call for a deed, and the power of the administratrix to execute one, was at an end. It is true, as insisted by defendants’ counsel, that specific performance is not a matter of strict right, but is to be enforced in the sound, equitable discretion of the court; but it is also true that, in the absence of fraud, mistake or other element making such performance inequitable or a hardship, the courts always grant the relief demanded. The question as to plaintiff’s right to call for the deed, upon the payment of the money, was fixed by the judgment of May Term, 1906. There was no provision in the decree declaring a strict foreclosure of plaintiff’s equity ujbon his failure to pay on the day fixed; on the contrary, a sale was ordered. If a sale had been made, a final decree would have directed the payment out of-the proceeds of the $1,000, and interest, to defendants, and the balance would have been paid to plaintiff. The effect of the judgment was to declare the heirs at law of Gardner Jones the holders of the legal title, as trustees, to secure the purchase money and pay the remainder to plaintiff, just as if Gardner Jones had held at his death a mortgage on the land to secure the debt. This being true, we are not able to see why, upon equitable principles, the same result could not be worked out by the administratrix accepting the money at any time before the sale and making the deed. The delay of three months, with the consent of the administratrix, worked no injury to defendants. It did not even delay them in getting possession of the money, as the commissioner was required, if he sold, to report his sale to the next term of the court. If the court had rendered a decree of strict foreclosure, very unusual at this day, and plaintiff had failed to pay on the day named, a different case would have been presented. The learned counsel suggested that a distinction was to be found between a case where the vendor sued for the purchase money and this, in which the vendee was suing for specific performance, the latter being an invocation of the equitable aid of the court. It may be that formerly, when the courts were more rigid in limiting the right to eqrutable relief, such a distinction for some purposes may have been made. This Court has for many years treated the relation of vendor and vendee, for all practical purposes, as that of' mortgagor and mortgagee, with all of its incidents. The decree rendered by the court at May Term, 1906, was in strict accord with the practice in this State in such cases. If the land had been sold under that decree, the plaintiff would have had the surplus, after paying the purchase money. If that is paid before the sale, the defendants Vill have what is due them, and the plaintiff the land. The only question left open is the adjustment of certain -rights asserted, as between defendants, to the fund. The judgment appealed from must be reversed and the cause proceeded with, as directed by the judgment of May Term, 1906. The plaintiff will recover his cost in this Court.

Error.