White v. Thompson, 21 N.C. 493, 1 Dev. & Bat. Eq. 493 (1837)

June 1837 · Supreme Court of North Carolina

21 N.C. 493, 1 Dev. & Bat. Eq. 493

ROBERT WHITE v. HENRY W. THOMPSON et Uxor, et al.

Defective conveyances to children are aided in equity. Mere inadequacy of price, in the absence of fraud or surprise, is no defence against a decree for a specific performance, especially when, in addition to the price, affection for a child entered into the consideration.

George White, the father of the plaintiff, purchased a tract of land of one Johnson, for which he paid one thousand five hundred dollars. He took a deed in his own name, but told the pláintiff that he had purchased it for him, and that he, the plaintiff, must aid in paying for it. The plaintiff paid one-third of the purchase-money ; and upon consultation with a neighbour as to the best means of securing, the title, it was concluded that the father should endorse his deed from Johnson to the plaintiff. This was done; and the following memorandum was written on the deed: — “ I endorse the within deed to Robert White, May 9th, 1829. Given under my hand and seal.” This was signed by the father in the presence of two witnesses, who attested it. The plaintiff went into possession; and the father died soon after, leaving seven children. Two of these children, who are defendants, brought an ejectment to recover their two-seventh parts of the land. The bill prayed an injunction, and that the defect in the plaintiff’s title, might be amended, by the defendants conveying to him the legal estate, which had descended to them from George White.

June, 1837.

The defendants, in their answer, put the plaintiff to the proof of his case; and as a distinct defence, alleged that their father was old and infirm, and had been induced by the contrivance of the plaintiff, to make the endorsement on the deed. They also insisted, that the part of the purchase-money paid by the plaintiff had been obtained from their father, who had already advanced the plaintiff greatly to the injury of his other children.

J. H. Bryan, for the plaintiff .

The defendants were not represented in this Court.

Daniex,, Judge,

after stating the case as above, proceeded. — The evidence in the cause, proves to our satisfaction, that the money advanced by the plaintiff, was his own money. There is no proof to support the allegation in the answer, that the father was imposed on; but there is abundant proof, that he intended to do what he did, and that he acted knowingly and understandingly on the subject. The price advanced by the plaintiff, to be sure, was only one-third of the value of the land; but the father meant to make a further provision and advancement to his son: and the evidence shows, that he executed the agreement on the back of the deed, in consideration of the money advanced, and also in consideration of natural love and affection for his son. To induce a Court of Equity to decree the specific performance of an agreement, it must be supported by a valuable or meritorious consideration. Mere inadequacy of price, is no ground for refusing a specific performance, when the party is under no incapacity or deficiency of judgment, or led by accident or design into a misapprehension of the value. Western v. Russell, 3 Ves. & Bea. 188. In the case before us, the father knew the value ; he was under no incapacity: and to the money advanced, his love and affection was an additional consideration, w'hich will be considered by the Court. Whether the provision was greater than it ought to be, the Court will not take upon itself to examine; the father, as Lord Hardwick® said in Goring v. Nash, 3 Atk. 185, being considered the judge of the quantum of the provision. The defendants say, that this is a parol agreement, and ought not, on that account, to be enforced. It is an agreement in writing, signed by the vendor; and if the statute of fraud had been relied on in the answer, (but it is not) parol evidence might have been given to prove the consideration. We are compelled to say, that the injunction must be made perpetual; and the defendants must be decreed to convey to the plaintiff what title they have in the land. The defendants are i\vo of the heirs-at-law, who have been seeking their rights; the plaintiff, therefore, will not recover costs against them.

Per Curiam. Decree accordingly.