Stinson v. Moody, 48 N.C. 53, 3 Jones 53 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 53, 3 Jones 53

WILLIAM R. STINSON vs. ANDERSON S. MOODY.

An instrument under seal, in which the obligor “ agrees and binds himself to dismiss a suit he has ponding, and to pay the costs”, though it also contains a deed for the land in controversy between them, and a covenant to surrender a bond for title to the same land, is nevertheless a release of the cause of action pending, and may be pleaded to that suit puis iarein coniinuance.

Action of debt ,on a penal bond, tried before his Honor, Judge Ellis, at the last Fall Term of Moore Superior Court.

The plaintiff declared on the following bond, viz: “ Enow all men by these presents, that I, Anderson S. Moody, am hold and firmly bound unto ~W. R. Stinson in the sum of two hundred and fifty-eight dollars, to make him a good and sufficient title to one hundred and twenty-nine acres of land, lying and being in the county of Moore, on the branches of Rear creek, adjoining the Davis one hundred acres, and John Dunlay's three hundred acres, which I bind myself, my heirs and assigns and administrators to make him a title, when the whole of the purchase money is paid within 1852. The conditions of the above obligations is such, that if the purchase money is paid within two years, 1852, and if not, to be null and void and of no effect. This 2d day of January, 1850.” Then follows a more minute description of the land to be conveyed.

The defendant pleaded the general issue, conditions performed and not -broken, and in apt time afterwards, pleaded release since the last continuance.

The purchase money stipulated to be paid by plaintiff, was satisfied by an order drawn by a third person on a merchant in Aslieborough, which was accepted in full satisfaction of that debt, and a note which had been given for the same was surrendered to plaintiff. He then demanded a deed for the land set out in the bond, and defendant having refused to make the same, this suit was brought. The order for the money had not been paid, and it was contended in the court below, that there was no breach of the bond, as the money called for in the order had not been paid when the suit was brought. This point, however, was abandoned in this court.

To sustain the plea of “release,” the defendant put in the following sealed instrument of writing, viz:

“Contract, compromise, and re-conveyance between ~W. R. Stinson and A. S. Moody. It is agreed on the part of said Stinson, to dismiss a suit he has pending in Moore Superior Court of Law against Moody, and pay the costs. And in consideration of ten shillings, the said Stinson hereby bargains, sells, and transfers to said Moody and bis heirs, one hundred and twenty-nine acres of land in Moore county, and all the interest, equitable or otherwise, which the said Stinson has, and holds, in and to said lands, which heretofore lie contracted to buy of said Moody, and for which he holds said Moody’s title bond, and which title bond, the said Stinson agrees, and binds himself, to surrender and deliver up to said Moody. This 31st of March, 1851.”

His Honor charged the jury that the evidence, if believed, established a payment of the purchase money: also, that the. deed offered in evidence did not sustain the plea of release. To this charge the defendant excepted.

Yerdict for plaintiff. Judgment and appeal.

Kelly, for plaintiff.

J. H. Bryan, for defendant.

Battle, J.

The counsel for the defendant has, in this court, abandoned, and very properly abandoned,'the objection, that the purchase money for the land which he had bound himself to convey, had not been paid prior to the commencement of the suit. He might, with equal propriety, have given up the objection, that the defendant had, under his bond, the whole of the year 1852, within which to convey the land to the plaintiff. The stipulation for time was inserted for the benefit of the plaintiff, and the true meaning of the contract evidently is, that upon the payment of the purchase money by the plaintiff, within the stipulated time, the defendant should immediately execute to him a deed for the land.

The last objection urged against the plaintiff’s right to recover, is of a different character, and we are unable to discover any ground upon which it can be resisted. We lay no stress upon that part of the instrument pleaded %nds darein continuance, which purports to be a reconveyance of the plaintiff’s interest in the land, but we do not see how the agreement under seal to dismiss the suit, pay the costs, and surrender the bond sued upon, can be construed to be any thing- else than, a release. A release is said to be “ when a man quits or renounces that which ho before had.” 7 Com. Dig. Tit. Relíase, Letter A. It may be by express words, or by act in law. When it is by express words, it does not require any particular word; so that “remise,” “quits claim,” “renounces,” “acquits,” &c., will have the same effect as the word “release.” Co. Lit. 261 b. If a lessor grants that his lessee shall be discharged of his rent, this amounts to a release of the rent. So, if a man acknowledges himself to be satisfied and discharged of all bonds, &c., by the obligor, it amounts to a release of the bond. So, if one covenant that he will never sue for a debt, this amounts to a release. See 7 Com. Dig., ubi supra, and the cases there cited. In Dean v. Newhall, 8 Term. Rep. 168, it was decided that where an obligee covenanted not to sue one of two joint and several obligors, and that if he did, the deed of covenant might be pleaded in bar, he might still sue the other obligor. But it was said, in the same case, that a covenant not to sue a single obligor might be pleaded as a release, to avoid a circuity of action. This principle must necessarily embrace our case. An agreement under seal to dismiss a suit then pending, to pay the cost, and to surrender up the bond upon which the action is brought, must, to avoid circuity of action, be construed to be a release of the action. The judgment of the court below is reversed, and a venire de novo awarded.

Per Curiam.

Judgment reversed.