Paschal v. . Brandon

79 N.C. 504

• Court: Supreme Court of North Carolina
• Decided: June 5, 1878
• Status: Published

Opinion

Reade, J.

It is too plain to need either argument or authority that the vendor of land is not entitled to recover the price until he tenders a good and sufficient title to the ven-dee. And whether the title tendered is good and sufficient is a question which the vendee has the right to contest with the vendor.

Elisha Sartain the vendee in the case before us is dead,, and the vendor plaintiff sues the administrator of Elisha Sartain for the price. The plaintiff can not recover without tendering title. The title when tendered must be, not to the administrator, but to the heirs at law of Elisha Sartain. And of course they must be parties.

This is the only question before us, for it follows that the reference and award made when the heirs were not parties must be set aside. When the heirs are made parties, if the administrator will not put in the proper defences to protect their rights, they must be permitted to do so.

When we had separate Courts of Law and Equity, if the plaintiff had sued at law for his claim, it would have required the intervention of the Court of Equity on the part of the heirs, but now all the rights of both parties both legal and equitable can be administered in this action. Hutchinson v. Smith 68 N. C., 354.

No Error. Affirmed.