Scarlett v. Hunter, 56 N.C. 84, 3 Jones Eq. 84 (1856)

Dec. 1856 · Supreme Court of North Carolina

56 N.C. 84, 3 Jones Eq. 84

GEORGE SCARLETT against HENRY H. HUNTER.

In Equity, time is not of the essence of a contract for the payment of money. Where there is a contract for the sale of land, the vendee is considered, in Equity, as the owner, and the vendor retains the title as security for the purchase-money.

Where the vendee is let into possession, it is taken for granted that each party is satisfied, until one or the other moves towards the execution of the contract by demanding a specific performance, and neither party, under such circumstances, has a right to insist on a lapse of time as a bar to a specific performance.

Cause removed from the Court of Equity of Mecklenburg County.

On the 25th of July, 1849, the defendant entered into a penal bond for five hundred dollars, payable to the plaintiff, with the following condition attached : “ The above obligation is such that the said Hunter is to make a right and title to George Scarlett to thirty-four acres of land, whereon the said Scarlett now lives, joining the lands of Harvy Young and others, when the said Scarlett pays said Henry H. Hunter the sum of sixty-eight dollars, with interest from the date — the money to be paid on the 25th of December, 1850 — then this obligation to be Yoicl, otherwise to remain in full force and virtue.”

In the fall or winter of 1853, the plaintiff having been up to that time in possession of the land, tendered the principal and interest due up to that time, and demanded that he (defendant) should make him a title, which he refused to do; whereupon the plaintiff filed this bill in 1854. The prayer is for a specific performance on the payment of the purchase-money.

Tiie defendant answered, denying the plaintiff’s right to have the land after the 25th of December, 1850; and alleging that the plaintiff had abandoned the contract

Replication, commissions and proofs. Cause set down for hearing and sent to this Court.

Wilson, for plaintiff.

Osborne-, for defendant.

RkaksoN, J.

In Equity, time is not of the essence of a contract for the payment of money. Upon this principle, after the day of payment according to a condition, is passed at law, this Court gives “ an equity of redemption ” and treats the property as security. The right of redemption is not affected by a failure to make payment; for the mortgagee may rest satisfied with his security as long as he chooses, and when he wants his money he may compel payment within a reasonable time, or foreclose the equity of redemption. Mere inaction by the parties will not raise a presumption of abandonment of the right of redemption under twenty years, according to the doctrine in England, or ten years, under our statute, in case of land, although the mortgagee has been in possession.

IVlicre there is a contract for the sale of land, the vendee is considered, in Equity, as the owner, and the vendor retains the title as security for the purchase-money, lie may rest satisfied with this security as long as he chooses, and when he wants the money, he has the same right to compel payment by a bill for a specific performance, as the vendee has to call for title. The right to have a specific performance is mutual, and when the vendee is let into possession, and continues in possession, as in our case, it is taken for granted that the parties are-content to allow matters to remain in statu quo, until a movement is made by one side or the other. These principles are fully discussed in Falls v. Carpenter, 1 Dev. and Rat. Eq. 237, which is decisive of-this case.

McGalliard v. Aikin, 2 Ire. Eq. 186, is not in point. That case was decided upon its peculiar circumstances ; there was an unequivocal act of repudiation or abandonment on the part o.f the vendee. The contract was made in 1813 ; the vendee never took possession, and moved to the State of Alabama in 1833, without having performed a single one of the stipulations on his part. In 1538, after a lapse of twenty-five years, he assigns his interest under the contract. The Court refuse, under the special circumstances, to decree a specific performr anee at the instance of the assignee.

The plaintiff is entitled to a decree for a specific performance, upon the payment of the purchase-money and interest, lie is also entitled to his costs, as the refusal of the defendant to perform his agreement, made it necessary to institute this proceeding.

Dee Cukiam. Decree accordingly.