Hartman v. M'Alister, 5 N.C. 207, 1 Mur. 207 (1808)

July 1808 · Supreme Court of North Carolina

5 N.C. 207, 1 Mur. 207

Hartman v. M’Alister.

From Wilmington District,

A. demised a lot in Wilmington to B, for five years, and in the inde'ffi ture -of lease, covenants, that if B, at any time before the expiration of the lease, should be willing to purchase the lot, he would convey it to him upon payment being made to him of $700. Before the lease expired, B. elected to purchase the lot, and paid $70 of the purchase money. He failed to pay the balance before the expiration Of the lease, and requested further time, which was allowed. He still failed to pay, and A. tendered to him the $70, brought an ejectment and recovered judgment. B. defended the suit, and failed to tender the balance of the money. He then filed a bill, offering to pay the balance, and prayed that A. might be decreed to receive the money, convey the lot, and be enjoined from disturbing his possession. injunction granted, and decree made according to the prayer of the bill; for,

The day of payment not being’ expressly stipulated, and the contract of purchase in part performed, the Court will grant a reasonable time to B, to complete the contract; but he must pay the costs-both at Haw and in Equity.

On the 19th March, 1799, M’Alister demised part of a lot in the town of ’Wilmington, to Hartman, to hold for the term of five years, at an annual rent of thirty dollars; and in the indenture of lease, covenanted and agreed witlí Hartman, “ that if he the said Hartman, or his heirs or assigns, should at any time before the expiration, or upon the expiration of the lease, be willing to purchase the said piece of land, that he, the said M’Alis-ter, his heirs or assigns, should and would, upon the payment of seven hundred dollars to him or them, make, convey, and execute, by proper and firm warranty deeds of conveyance, a light and absolute property in and to the land, to the said Hartman, his heirs or assigns, forever.” And M’Alister further covenanted that if Hartman should not purchase the premises, then at the expiration of the lease, any houses or buildings that might he erected thereon by Hartman, should be valued by. two indifferent persons, and the amount of the valuation paid to Hartman or his assigns, &c. Hartman entered under ]easCj anc| erected several houses : he paid the ground rent to M’Alister, and in February, 1804, paid him seventy dollars, in part of the purchase money for the premises, and took a receipt in the following words, e< Wilmington, 2d Feb. 1804 — Received of Jacob Hartman seventy dollars in part payment for a lot bought of me on the south east corner of Dock and Front streets,” (signed) “ Oil’s M’Alister.” The lease expired in Dec. 1804, and M’Alister supposing that by the agreement aforesaid, Hartman was bound to pay the whole of the purchase money before or at the expiration of the lease, applied to Hartman a short time after the lease expired, and insisted upon having the business respecting the lot settled. Hartman requested an indulgence of ten days for the balance of the purchase money. M’Alister granted an indulgence of twenty days ; at the end of which time he wrote to Hartman that he would extend the time of payment for ten days more, but that, if the money was not then paid, lie would expect to receive the sum of one hundred and twenty dollars per year as rent. IN o answer being returned to this letter, nor any further payment being made or offered by Hartman, M’Alister tendered to him the seventy dollars which he bad received as before stated, and instituted an action of ejectment against Hartman, and obtained judgment. Whereupon, Hartman filed this bill, praying that he might be permitted to complete his purchase of the premises, offering to pay the balance of the purchase money, and that M’Alister might be decreed to convey, and be enjoined from disturbing his possession. M’Alister having filed his answer, the case was .seat to this Court for tiie opinion of the Judges.

The case was argued by Gaston for the Complainant, and by Duffy and Williams for the Defendant,.

For the bomplainant, it was insisted that he was entitled to relief upon these grounds. 1st. That the indenture of lease contained no express stipulation for the payment of the money at the day on v hicli the lease was to expire. The parties might have intended that the mone^ should he paid at or before the day ; but that intention was not expressed, and the Court will allow to Complainant, a reasonable time after the expiration of the lease to make the payment, unless he has been guilty of some iniquity, by which he has forfeited his claim to equitable relief. 2d. The covenants of the indenture were mutual and independent ,• a performance by Hartman was not made a condition upon which the performance by M’Alister was to depend, nor vice versa. M’Alister could have sued Hartman for the balance of the purchase money, and compelled him to pay it. The mutuality and independence of the covenants, furnished a good ground for the interference of a Court of Equity on behalf of the Complainant. — 1 Fonb. 381. And lapse of time is not strictly regarded in that Court, it being an established rule that articles of agreement for the purchase of estates ought to he performed — 1 Atk. 12. The delay in this case is not equal to that which had occurred in many other cases, in which agreements had been'decreed to be performed. There is no evidence that Hart-mau at any time evinced a disposition to abandon his contract, or was guilty of any fraud towards M’Alister. Sd. M’Allster has in part performed the contract of sale, by accepting the seventy dollars paid to him on 2d February, 1804. Where the contract lias been performed in part, Equity will compel an entire performance, unless the party seeking relief has, by his neglect or fraud, forfeited his equity — Powell on Contracts, 427.

For the Defendant, it was answered, that although the indenture contained no express stipulation for the payment of the money at or before the expiration of the lease, yet it was understood by the parties, that in the event of a purchase, the money was to be so paid, and the indenture fairly warrants this construction. .This jn(jcntiu.e js to receive the same construction in this Court, as in a Court of Law. The parties intended that Hartman should have five years in which to determine whether he would make the purchase of the premises : if he elected to purchase, the money was to be paid at the termination of his lease. Equity will not enlarge the time in favour of a party who has made default •• five years is a reasonable time ,• he has had that; after asking time from M’Allister, and getting much more than he asked, he still delayed payment | ho defended the ejectment brought against him, never tendered the purchase money, nor offered to pay it until he filed this bill. After this delay, will the Court enlarge the time ? If Hartman was bound to pay the money at the expiration of the lease, and he shews no very good reason why he did not pay it, equity will not enlarge the time. 2 Ver. 136 — 10 Mod. 503 — 4 Ves. jun. 689, ,671, 677 — 5 Yes. jun. 720.

Baker, Judge,

delivered the opinion of the Court:

The Complainant, by the agreement which he made with the Defendant, was allowed time until the expiration of his lease, to determine whether he would purchase the lot in question or not, for the sum of seven hundred dollars : and, although it is probable, that the parties intended the same should be paid at or before that time, yet as the words of the agreement do not expressly require it, and as the Complainant made a payment of seventy dollars before that time, which the Defendant received in part of the purchase money, it appears that Complainant manifested his determination to make the purchase, and the Defendant confirmed it by his receipt of the money. We therefore think, that he should be compelled to convey to the Complainant the lot in question, upon his paying to the Defendant the balance of the ■said seven hundred dollars, with the interest thereon; and we direct that the same be paid by the Complainant within forty days after he shall be served with a copy of the decree to this effect: and that upon the payment of the said principal and interest, the injunction shall be made perpetual j but on failure to make payment, the injunction shall be dissolved. And as the Complainant by his neglect to comply with his agreement has driven the Defendant into Court, we think he should pay all costs both in law and equity.