Williams v. . Joines

Stacy, C. J.

It is alleged that the deed in question constitutes the written contract between the parties. It was therefore competent for the plaintiffs to offer it in evidence as a part of their case.

The clause in the deed which provides for a reconveyance on the conditions stated, nothing else appearing, would seem to stamp the transaction as a conditional sale. Poindexter v. McCannon, 16 N. C., 373; King v. Kincey, 36 N. C., 187, 36 Am. Dec., 40; Waters v. Crabtree, 105 N. C., 394, 11 S. E., 240; Gillis v. Martin, 17 N. C., 470. “Generally, a conveyance of land between parties wbo do not bear the relation of debtor and creditor, made upon a stipulation that tbe grantor may repurchase, is a conditional sale and not a mortgage, . . .” 41 C. J., 326. See Ferguson v. Blanchard, 220 N. C., 1, 16 S. E. (2d), 414; O’Briant v. Lee, 212 N. C., 793, 195 S. E., 15; S. c., 214 N. C., 723, 200 S. E., 865.

It is very generally held for law, here and elsewhere, that a “grantee in a deed poll, containing covenants and stipulations purporting to bind him, becomes bound for their performance, though he does not execute the deed.” Herring v. Lumber Co., 163 N. C., 481, 79 S. E., 876; Henry v. Heggie, 163 N. C., 523, 79 S. E., 982; Bank v. Loughran, 122 N. C., 668, 30 S. E., 17; Long v. Swindell, 77 N. C., 176; Finley v. Simpson, 2 Zab. (N. J.), 311, cited with approval in Maynard v. Moore-, 76 N. C., 158.

We are not now concerned with the exact form or extent of recovery, but whether the case as made survives the demurrer. One who would take the benefits of a contract must assume its burdens, or else bear the consequences attendant thereon. Oil Co. v. Baars, 224 N. C., 612, 31 S. E. (2d), 854; Ballard v. Boyette, 171 N. C., 24, 86 S. E., 175; Burns v. McGregor, 90 N. C., 222. Suffice it for present purposes to say the deed should have been admitted in evidence, even if the plaintiffs be limited in their choice of remedies to an annulment of the contract or an assessment of damages. Oil Co. v. Baars, supra. It will be time enough, if then necessary, to'consider the rights of the parties under the stipulation after the defendants’ plea of non est factum has been determined. Its effect under the pleadings may well await this determination.

The judgment of nonsuit will be vacated and the cause remanded for further hearing.

Reversed.