Mitchell v. Wood , 70 N.C. 297 ( 1874 )

PeaesoN, C. J.

The allegations of the complaint makes a plain case, for the specific performance of a contract to sell land. These allegations are admitted, and the only difficulty grows out of the fact that the plaintiffs, instead of demanding-judgment for the balance of the purchase money, and an order to sell, the land in case such balance was not paid, demand judgment:

1. That the contract be rescinded.

2. For a writ of possession.

3. For damages for withholding the possession.

The plaintiff's had no right-, to demand judgment for either of these particulars. -

1. There is no ground on which the Court can rescind the contract;

2. In order to enforce its performance, there is no reason why the plaintiff’s should be put into possession inasmuch as they do not elect as vendors, holding the title as security for the purchase money to take possession, and account for the rents and profits in discharge of interest and principal, and there is no allegation of a demand of the possession and notice to quit, as in Butner v. Chaffiin, Phillips 497, but elect to close the contract by enforcing payment of the balance of the purchase money, as mortgagees seeking to foreclose. 3 They are not entitled to damages by way of rents and profits, for a vendee or a mortgagee, who is let into possession, receives the rents and profits, in lieu of the interest for which he is liable. But because the draftsman of the complaint was under a mis apprehension as to the i elief to which the plaintiff's are entitled, it does not follow that they are not entitled to relief according to the case made by the allegata et probata, and are to be put off simply with a judgment upon the note for the unpaid part of the purchase money, under which they could not sell the land. Camp v. Cox, 1 Dev. & Bat., 52.

The judgment will be modified, by adding: In the event that the amount is paid into the clerk’s office by1 the defendant, or is made by the sheriff and paid into office with the return of the execution, the plaintiff, H. H. Mitchell, as administrator, will file a deed in the office conveying the land in fee to the defendant, the deed to be approved of by the clerk before the money is withdrawn from the office.

In the event that the amount is not paid, aud the sheriff having the execution cannot make the money; then he will sell the land to satisfy the execution, and the excess, if any, pay over to the defendant. As the judgment is modified, the costs of this Court will be taxed against plaintiffs and defendants, each to pay one-half.

Pee Cueiam. Judgment accordingly.