Strickland v. Fowler, 21 N.C. 629, 1 Dev. & Bat. Eq. 629 (1837)

Dec. 1837 · Supreme Court of North Carolina

21 N.C. 629, 1 Dev. & Bat. Eq. 629

WILLIAM G. STRICKLAND v. JOSEPH FOWLER, Admr. et al.

Gross laches is a defence to a bill for specific execution of a contract; but what will amount to it, depends upon the circumstances of each case. A delay for nine years will bar a bill seeking the performance of an agreement to sell the life interest of an old person in a lot of slaves, and an •account of their hire; for during the time delayed, the defendant has taken •the risk of the life-estate.

The facts of this case, as found by the Court, were as follows:—

John P. Strickland, the father of the plaintiff, was entitled to nine slaves for the life of his wife, with remainder to her children. An execution issued against him, and his interest in these was sold to one Newton Wood, in the year 1827. At the sale, Wood agreed to buy the negroes, and permit the plaintiff to redeem them, upon paying a debt due him by J. P. Strickland, together with the sum he might bid for them. This agreement never was executed ; and in the year 1829, the plaintiff and his brothers and sisters filed their bill against Wood, praying for security of their rights as remaindermen. In his answer to that bill, Wood submitted to deliver up the negroes upon being satisfied for his debt and advance. This bill was filed in the year 1836: it set forth the death of Wood : that the defendant Fowler had proved his will; and that either he or the other defendants, the children of Wood, held the negroes: that Mrs. Strickland, the mother of the plaintiff, was still alive; and it prayed an account of. the hires of the negroes, and tendered to pay the balance of Wood’s claim, if any should exist; and for a specific execution of the contract.

Dec. 1837.

The defendant Fowler, in his answer, stated that he had settled the estate of Wood as early as the year 1833, and delivered the negroes to the other defendants ; and all the defendants relied upon the act of limitations, and the act of 1817, avoiding parol agreements for the sale of land and slaves; and insisted upon the laches of the plaintiff in not sooner bringing forward this claim.

Badger, for the plaintiff.

W. H. Haywood, for the defendant.

Daniei,, Judge,

after stating the facts as above, proceeded.

• There is no evidence in the cause excusing the plaintiff’s laches. In decreeing or not decreeing specific performance of an unobjectionable contract, the Court, it is said, has a discretion, — and so it has; — but it is a regulated and judicial discretion, governed by established rules of equity. 1 Mad. C. P. 362. One of these rules is, that if there has not been gross laches in a plaintiff, a specific performance of an agreement for the purchase of an estate will not be decreed. 1 Mod. C. P. 415.

What shall be deemed laches so as to prevent the Court decreeing specifically, will very much depend upon the circumstances attending each particular case; and also whether the plaintiff is in, or out of the possession of the estate; (vide the cases cited in 1 Mad. C. P. 417, 418.) The purchase here, was at the first, but for the life of an old lady. The plaintiff has lain by until perhaps the hires of the slaves may pay the debt. The risk of the life of Mrs. Strickland, and of the lives of the slaves, and the risk of the loss of evidence as to the terms of the contract, have been, all the time, at the expense of the defendants.

A lot of slaves in this country, will almost necessarily materially change their value in seven or eight years. Shall the plaintiff, after such a lapse of time, and after filing his bill for a ne exeat be now permitted to have the amount of the hires carried to the credit of Wood’s debt, and to call for a specific performance ? It would certainly be very much in the teeth of what was said by Lord Alvant.ey, that a party cannot call upon a Court of Equity for a specific performance, unless he has shown himself “ ready, desirous, prompt and eager.” 5 Yes. Rep. 720, note. We are of opinion, that the laches of the plaintiff, taken in connection with the other circumstances in the case, precludes us from giving him a decree; and on this point the bill must be dismissed. We give no opinion as to the effect of the act of 1819, on the agreement.

Per Curiam. Decree accordingly.