Grier v. Rhyne , 69 N.C. 346 ( 1873 )

Reade, J.

The plaintiffs are entitled to recover the land ■demanded, unless the defendant’s defense will avail him.

The plaintiffs claim under a purchase at execution sale against one G. O. Rhyne. The defendant claims under a contract of purchase and a bond for title from the same G. O. Rhyne prior to the lien of the execution under which the plaintiffs claim.

The plaintiffs claim the whole tract of seventy acres. The defendant claims a part of the same tract under a bond for title as follows: “ The condition of this obligation is such that whereas the above bounden G. O. Rhyne hath contracted and agreed to sell and convey to the said M. H. Rhyne and his heirs a certain piece of land in the county aforesaid adjoining the lands of S. J. Suggs and M. H. Rhyne and others, being a part of the Alexander tract, sup posed to contain thirty or thirty-five acres, on receiving the sum of $14 per acre,” &c.

This thirty or thirty-five acres it appears was to be a part of the tract of seventy acres, which the plaintiffs claim. And as the plaintiffs bought with notice of the defendant’s equitable claim, they would be bound by it. And they would be declared to hold so much of the land as trustees for the defendant, and would be compelléd to convey to him.

But the difficulty in the defendants way is, that his contract of purchase of thirty or thirty-five acres, to be taken off a tract of seventy acres, without saying where it is-to be taken off is so vague and indefinite that we cannot enforce it specifically. It is uncertain in quantity and uncertain in boundary, and there is no reference to. any thing by which the quantity or the place can be made certain. The plaintiffs must therefore recover the whole tract of land.

But still the defendant has an equity against the plaintiffs which must be protected, in this: the defendant had contracted for an interest in the land, and had paid a part of the purchase money. And upon a failure to get title he is entitled to recover his money back and to have the land charged with it. The plaintiffs having bought with notice are affected by his equity and the same is a charge upon the land in their hands. Upon another trial there should be an enquiry as to the amount paid by the defendant, and upon the payment of that sum with interest to the defendant by the plaintiffs they will be entitled to recover the land.. *■

Otherwise the land should be sold and the rights of the parties adjusted in accordance with this opinion. Legal and equitable rights are now administered in the- same action.

There is error.

Per Curiam. Venire de novo.