Brittain v. McLain, 41 N.C. 165, 6 Ired. Eq. 165 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 165, 6 Ired. Eq. 165

LEANDER E. BRITTAIN vs. JOHN McLAIN.

Where a vendee gave a bond for the purchase money of a tract of land, and the vendor, at the same time, gave a bond to make a valid title, when the money was paid ; Held, that these were concurrent acts, and that, if the vendor attempted to collect the money on the .bond for the price of the-land, without making or tendering a valid title, the vendee was entitled to an injunction, and if a valid conveyance of title was not filed in. Court, after the bill of injunction granted, the injunction should be continued to the. hearing.

Appeal from an interlocutory order of the Court of Equity of Henderson County, at the Spring Term 1848, dissolving an injunction theretofore granted* his Honor Judge Battlk presiding.

The bill charges, that, in the year 1845, the plaintiff purchased from the defendant a tract of laud in Henderson County, at the price of $395, and, to. secure the purchase money, executed his bond to the defendant with "William Brittain, his surety, payable on the first day of January ]S47, and, at the same time, the defendant executed to him a bond to make a conveyance of the land1, when the purchase money was paid. It charges, that, at the time of sale, which was made by public auction, the defendant represented the land as the property of John McLain, deceased, of Georgia, who had made a will appointing himself executor thereof, and giving him full power and authority to sell the said land ; that he took possession of the said land and proceeded to improve it, but, in a short time, was informed, that the defendant had no power to make a valid conveyance, and, upon application to the defendant, was informed that a caveat against the probate of the will had been entered in the Court of the proper County in Georgia, where the said John McLain lived and died, and where it was still pending. The plaintiff alleges, that he has recently been informed and charges the fact so to be, that the defendant never brought the will of John McLain to this State, but merely a copy, which he caused to be entered on the records of Henderson County, and procured letters testamentary to be issued thereon to him in this State, as one of the executors thereof, and by said paper it appears to have been proved before three Justices of the Peace, out of Court, of Raburn County, in the State of Georgia. The bill further charges, that the defendant had no power, under the present state of the paper writing, to make a valid conveyance of the land: that the defendant has never made any conveyance of the land or tendered one to him, but without so doing has sued him on his bond and recovered judgment against him, and is about to take execution thereon ; and, if he collects it, he fears it will be to him an entire loss, and prays that the contract may ;be rescinded, and an injunction issued to restrain the defendant from collecting the money on his judgment.

The defendant answers, that John McLain, of Raburn County, in the State of Georgia, died in the year--, having made his last will and testament, duly executed to pass real estate in the State of Georgia; that he and ■one John Martin were appointed executors, and power is given to them, or either of them, to sell and convey the ¿and in question; that, in conformity with the laws of .Georgia, the said will was proved before three Justices of the County of Raburn, and duly recorded in the Court of Ordinary in the said County^. He admits executing the bond for a conveyance, as stated in the plaintiff’s bill, and that he has not made a deed for the land, but is will¿ng-to do so whenever called on ; that he has obtained a judgment against the plaintiff on his bond, and that he is able to make good to him any injury he may sustain, in consequence of his not obtaining title. He avers that no .caveat has ever been entered to the probate of the will in Georgia, and denies he ever so told the plaintiff. The defendant further alleges, that Alexander Martin, his co-executor, took out letters testamentary in the State of Georgia, and he procured from him a good and sufficient deed of conveyance to the plaintiff of the said land, which he now has and is willing to bring into this Court and deliver to the complainant, whenever thereto required.

IV. W. Wood-fin, for the plaintiff.

Baxter, for the defendant.

Nash, J.

Upon the coming in of the answer in this case, the injunction theretofore granted was dissolved. From the pleadings in the ease, it appears, that the defendant, representing himself as the executor of the will of John McLain, of Georgia, and claiming to have full power, as such, under the will, sold to the plaintiff a tract of land lying in Henderson County in this State. The. plaintiff executed to the defendant Ms note or bond for the purchase money payable the 1st clay of January, 1817. This bond bore date in March 1845. At the same time, lbo defendant executed his bond to make title to the plaintiff, when the purchase money was paid. The defendant, without executing or handing to the plaintiff any deed for the land, sued him upon his bond and has obtained a judgment on it, nor has he even brought into Court any deed from himself or from his co-executor, Martin, to the complainant. We think bis Honor erred in dissolving the injunction. The acts to be. performed by these parties were concurrent acts, to be performed at one and the same time. The plaintiff bound himself .to pny the money; duo upon bis bond on the 1st of January, 1847, and the defendant bound himself, at the same time, to make a conveyance of the land. Whichever of the parties, in such a case, takes the initiative, becomes thé actor. A Court of Equity will not compel a purchaser to take a doubtful title. He has a right to have the title brought into Court, and a reference to the Clerk, if he so chooses, to examine and report upon it. This the defendant has not done, and we do not consider him entitled to force the purchase money from the plaintiff, and to throw him upon the uncertain security of his bond to make a conveyance. He is not compellable, in Equity, to part with his money, until the vendor has conveyed or offered to convey the land. This the defendant has not yet done. We do not consider the other objections raised by the answer, as properly before us. The only question referred to us is the propriety of the dissolution of the injunction. We think there was error in dissolving the injunction, and that it ought to be retained to the hearing.

The decree below reversed with costs, as to this Court. This opinion will be certified to the Court of Equity of Henderson County.

Per Curiam.

Ordered to be certified accordingly