Cohn v. . Chapmen , 62 N.C. 92 ( 1867 )

The bill stated that under negotiations begun in 1857, the complainant had bargained and partially paid for a lot in New Bern, which (93) was described; that in 1860 John Chapman agreed to advance the residue of the money due upon the purchase and take title to himself, and agreed that, upon repayment thereof by the complainant, he would convey the lot to him; that this was known to the person who then had the legal title, and was assented to by him; but that through ignorance in the parties, the agreement was not inserted in the deed made to Chapman; that in the same year Chapman was killed, leaving Laurie and Mary Chapman, his only children, and Mrs. Lovey L. Chapman, his widow; and that the latter is administratrix, and also guardian for her children; that an ex parte petition in their names was filed in the Court of Equity for Craven County, to sell said lot; and at such sale James W. Carmer became purchaser, and after some delay has executed his bond for the price, but has paid nothing as yet; that complainant had recently communicated with Mrs. Chapman in regard to the residue of the money due to her husband from him upon the contract in 1860, and as she, being guardian, preferred a bond for the money to the money itself, he had executed such bond, with two persons (naming them) as sureties, and that it was "amply good"; and that since then Carmer has notified him not to pay for said land, and not to take a deed, as he insists upon his title, and intends to apply for a deed. The prayer was, "that the defendants to convey unto your orator a good and valid title to said lot," and for further relief.

The answer of Mrs. Chapman admitted the statements in the bill to be true.

The answer of James W. Carmer alleged that the agreements between the complainant and the others who were concerned in the bargain were intended to defraud the complainant's creditors; also, that complainant was present at the sale under the decree in equity, laying no claim to the lot, and bidding for it a sum within but a few dollars of that at which it was purchased; and that defendant had no knowledge of (94) any such claim by him until within a short time before the Spring Term of CRAVEN.

His Honor made a decree in behalf of the complainant, in accordance with the prayer for specific relief. The agreement between the complainant and John Chapman, the intestate and former husband of the defendant, Lovey Chapman, and the father of the infant defendants, as set forth in the bill, is fully admitted in the answers of said defendants; and the performance of the agreement on the part of the complainant is also admitted.

Nothing remains, therefore, but to determine whether it is such an agreement as will be enforced in this court.

A parol agreement between A and B, that A will purchase land for B and take the title to himself, and hold it for B until the latter can pay for it, and when paid for, will convey it to him, is such an agreement as equity will enforce. And such, substantially, is the agreement in this case. Lyon v. Crissman, 22 N.C. 268; Hargrave v. King, 40 N.C. 430;Cloninger v. Summit, 55 N.C. 513.

This would be true even if the agreement were denied in the answers and rested on proof by the complainant. But the agreement is fully admitted in the answer of Mrs. Chapman, for herself and her children, and said defendants declare their readiness to comply with it. But the defendant, Carmer, sets up title under his purchase, and objects to the other defendants making title to the complainant. And his objection was supposed to make the necessity for this suit. The defendant, Carmer, can not set up any title against the complainant's equity, for he has paid nothing under his purchase, and he will be entitled, (95) by proper motion in the cause under an order in which he purchased the land, to have his bond for the purchase money cancelled. And besides, he is a purchaser affected with notice of the complainant's equity. Choninger v. Summit, ubi supra.

The complainant is entitled to a decree against the defendant, Mrs. Chapman, for title to the land. And he is not entitled to cost against said defendant, but not against the defendant, Carmer, nor is Carmer entitled to cost against the complainant.

PER CURIAM. Decree accordingly.

Cited: Harrison v. Emery, 85 N.C. 165; Barnard v. Hawks, 111 N.C. 338;Cobb v. Edwards, 117 N.C. 247; Avery v. Stewart, 136 N.C. 440.