McKay v. Melvin, 36 N.C. 73, 1 Ired. Eq. 73 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 73, 1 Ired. Eq. 73

JAMES J. McKAY vs. JOHN MELVIN et ux. et al.

Where an agreement in writing was made for the purchase of a tract of land, by which the vendee was to take possession.of the land immediately, and the vendor was, “ when thereto requested,” to deliver him. a deed therefor, upon the receipt of which the vendee was to give his three several promissory notes, payable at one, two and three years thereafter; and the vendee took possession of the land immediately, according to the agreement, hut the vendor died without giving a deed, or receiving the notes for the purchase money, it was held, upon a bill ■ subsequently filed by the vendee for a specific execution of the contract, that he should pay interest on the instalments of the purchase money, as if the notes had been given in a reasonable time after the date of the agreement.

The bill was filed to enforce the Specific performance of an agreement for the purchase of a tract of land, entered into between the plaintiff and Patrick Kelly, the ancestor of the defendants. By the terms of the' agreement, which was made in writing, under the seals of the parties, on the 26th day of October, 1835, the plaintiff was to take possession of the land immediately, and Kelly was, “ when thereto requested,” to deliver to him a deed, with the usual covenants, sufficient in law to convey a perfect title in fee simple to the said land; and the plaintiff on his part covenanted that in consideration of the premises, “ and on delivery of the deed aforesaid, he would execute unto the said Kelly his three Several promissory notes of $1,000 each; the first payable one year thereafter; the second two years thereafter; and thé third and last, three years thereafter; the said third and last to bear interest one year before it became due and payable.” The plaintiff took possession of the land immediately, according to the agreement; and a short time thereafter, Kelly died intestate> before any demand was made upon him for a deed, or the plaintiff had executed any notes. The defendants, who were the - heirs at law and the administrator of Kelly, admitted the agreement as stated in the bill, and the death of Kelly shortly thereafter; and expressed their willingness to convey the land, if the plaintiff would comply with the agreement on his part, by paying the purchase money with interest.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: It appears to us, that if there be any dispute in this case, it is whether the plaintiff shall pay interest on the purchase money-? and if so, at what time the interest shall begin to run? - By the agreement, the plaintiff took possession in October, 1835. In equity, he was then the complete owner of the estate. The death of Kelly (an act of Providence) was the reason that the title deeds and notes were not given in a short time after the plaintiff took possession. It seems to us to be equitable and just, that interest should be calculated on the instalments of the purchase money, as if the notes had been given in a reasonable time after the date of the agreement. We think that the first of January, 1836, would have been a reasonable time within which the notes might have been given according to the agreement, if the death of Kelly had not prevented it. Therefore, the plaintiff is entitled to a decree for a specific performance. And the heirs at law of Kelly will execute deeds of release and quit claim to the plaintiff, of the lands, of which he has taken possession; and deeds of bargain and sale in fee, of any lands mentioned in the agreement, and which are not in his possession. These deeds will be executed under the direction of the Master of this Court, provided that the plaintiff first pay to the administrator of P. Kelly, or pay into the office of this Court, the purchase money, with interest as follows: $1,000, with interest on the same from the first day of January, 1837; and $2,000, with interest on the same from the 1st day of January, 1838. If the purchase money and interest is paid, as above directed, on or before the tenth day of the next term of this Court, the decree for the plaintiff will' be drawn up and entered; otherwise, the bill will ¡stand dismissed with cost.

Per Curiam. . Decree accordingly.