Citation Numbers: 86 S.E. 988, 170 N.C. 102
Judges: CLARK, C. J.
Filed Date: 11/17/1915
Status: Precedential
Modified Date: 1/13/2023
The defendant's appeal requires no consideration beyond the exception that the tender was not sufficient as the jury found under the charge of the court. We need not consider the exceptions as to the sufficiency of the tender, for the property was encumbered by liens beyond the contract price and it was not necessary that the plaintiff should pay $1,400 in court and lose the interest thereon during the five years that this litigation has been pending, while the interest was accumulating upon the liens. It was the duty of the defendant to have paid off and discharged these liens, and when the plaintiff alleged their existence and that he was ready, willing and able to pay the $1,400 into court the defendant should then and there have accepted the offer. Hardy v. Ward,
Besides, as the defendant's wife refused to join in the conveyance, and it was necessary for the jury to ascertain the value of her inchoate right of dower, the plaintiff could not know until that was done the amount he should pay in, even if there had been no outstanding liens and encumbrances.
The defendant is in default by the failure of his wife to join in the deed releasing her right of dower and in his failure to pay off the liens. He is in no condition to object that the plaintiff did not pay $1,400 in court until he could give a good and sufficient deed to the premises with a release by the wife of her inchoate right of dower or a deduction for the value thereof duly ascertained.
Upon the facts of this case no more was necessary on the part of the plaintiff than the tender in his complaint of the amount of the purchase money upon the cancellation of the liens and the (109) tender of a good and sufficient deed on the part of the defendant with covenants of warranty. The judgment of the court that the defendant should specifically perform upon the plaintiff now paying into court the $1,400 purchase money with interest thereon from 13 January, 1911 (the expiration of the ninety days), was correct. It is not necessary to consider the exceptions, therefore, as to the actual manner and mode of the tender of the $1,400 before that time.
No error.
Cited: Schwren v. Falls,