Shaver v. . Shoemaker , 62 N.C. 327 ( 1868 )

The defendant Shoemaker sold to the defendant Gentile the tract of land in controversy, and executed to him the following bond for title: "Know all men by these presents, that I, John Shoemaker, of North Carolina, Iredell, am held and firmly bound unto Joseph Gentile in the sum of sixty dollars, to which payment I bind myself, my heirs and assigns, on condition that if the said John Shoemaker fail to make the said Joseph Gentile a good and lawful deed to a certain tract of land in the county or Iredell, containing thirty acres, adjoining the lands of William Shaver, Caldwell and others, when the said Joseph Gentile pays the said John Shoemaker the sum of thirty dollars — then the above bond to be paid, otherwise to remain in full force and virtue. In witness whereof I have hereto set my hand and seal. 20 (328) February, 1854. John Shoemaker. [Seal.]" Subsequently Gentile sold the said land to the plaintiff, who took possession. Upon that sale Gentile, instead of making to the plaintiff a title bond, handed over to him the aforesaid bond which the defendant Shoemaker had made to him. Gentile had not paid Shoemaker; and, subsequently to his sale to the plaintiff and after the plaintiff had paid for the land, he and Shoemaker agreed to rescind their trade, Shoemaker agreeing to take back the land and give up to Gentile the bond which he had for the price. But before that rescission, and about a year after he had sold to the plaintiff, he executed to the plaintiff precisely such a title bond as Shoemaker had executed to him, except that the consideration was ninety-five dollars, and the date was 15 November, 1855. But this bond was really executed about a year after it bears date, and was attested by the plaintiff's son, and was dated back to agree with the time when Gentile first agreed to sell the bond to the plaintiff. By the sale from Shoemaker to Gentile the latter took an equity in the land, and by the sale from Gentile to the plaintiff that equity passed to the latter. And the subsequent release by Gentile to the defendant Shoemaker did not affect the prior equity of the plaintiff, of which the defendant Shoemaker had notice.

It does not appear that Gentile ever paid Shoemaker for the land, so that the original price of thirty dollars and interest is still due. It does appear that the plaintiff paid Gentile for the land, but as Shoemaker has never been paid, he is entitled to be paid by the plaintiff before the latter can call upon him for the title. Whenever, therefore, the plaintiff shall pay the defendant Shoemaker the sum of thirty dollars, with interest from 20 February, 1854, or shall pay the (329) same into court for his benefit, the defendant shall make to the plaintiff a good and sufficient title to the land in controversy.

The objection was taken that the land is not so described in the title bond, as that a specific performance can be decreed. It is true that the description is not very full, but we think it sufficient.

It is evident that the plaintiff put a false date to the title bond which he took from Gentile; and if this had worked any injury to the defendant Shoemaker, it would have been sufficient to defeat the plaintiff's claim to the aid of this court in enforcing a specific performance. As it is, we so far discountenance the transaction as to give the plaintiff no cost.

There may be a decree in conformity with this opinion.

PER CURIAM. Decree for the plaintiff.

Cited: Pemberton v. McRae, 75 N.C. 499; Barnes v. McCullers, 108 N.C. 54.

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