Harwood v. Shoe.

Defendant Shoe, having pleaded sole seizin as to 50 acres, the case was tried upon the following issues:

1. Did Susan Harwood, at the time of the execution of the deed of 29 December, 1893, have sufficient mental capacity to execute the same? Ans.: Yes.

2. Was the execution of the said deed procured by fraud and undue influence of the defendant John Shoe, as alleged in the complaint? Ans.: No.

3. Did the defendant John Shoe perform the covenant of maintenance of Susan Harwood, as provided in the deed? Ans.: No.

4. If he failed in any particular as to the said contract of maintenance of Susan Harwood, was such failure due to the acts or conduct of the plaintiffs? Ans.: Yes.

5. Is John Shoe the owner in fee and entitled to the 50 acres of land described in the answer? Ans.: Yes.

6. Are the plaintiffs and defendants tenants in common of all the lands described in the petition except the 50 acres? Ans.: Yes. (162) From the judgment rendered, the plaintiffs appealed. The learned counsel for plaintiffs contended that they are entitled, upon the issues as answered, to a judgment for plaintiffs, and in his argument stated that he wished to rest his whole case upon that exception to the ruling of the court below.

The jury found in answer to the fourth issue that the defendant's failure to carry out his contract of maintenance of Susan Harwood was due to the acts and conduct of the plaintiffs. But the plaintiffs say that they were strangers to the contract, and that, therefore, they are not to be held responsible for the nonperformance of the contract by defendant Shoe. It is a general rule of law that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. If this action were being prosecuted by Susan Harwood to set aside the deed on account of the nonperformance of his obligation by defendant, this rule of law would apply, although the defendant was prevented by a third person, without Susan Harwood's consent, from performing his contract. But the plaintiffs are the heirs at law of Susan Harwood and inherited the land from her. They had a personal and pecuniary interest during her lifetime in a failure by defendant to comply with his agreement. If he failed, the conveyance could be avoided, and they would get the land at her death. The defendant offered evidence tending to prove that during Susan Harwood's life the plaintiffs compelled defendant to leave the land and by force prevented him from carrying out his obligation to her. (163) The jury accepted defendant's version of the facts.

To permit plaintiffs to recover the land now upon the ground contended for by them and in the face of such a finding by the jury would be to permit them to take advantage of their own wrong.

It is a salutary rule of law that one who prevents the performance of a condition, or makes it impossible by his own act, will not be permitted to take advantage of the nonperformance. This rule applies with especial fitness where the party is impelled by personal interest, as in this case.Young v. Hunter, 6 N.Y. 207; Buffkin v. Baird, 73 N.C. 283; Harris v.Wright, 118 N.C. 422; Navigation Co. v. Wilcox, 52 N.C. 481. It would be against good morals, as well as law, to allow plaintiffs to profit by their wrongful acts, although they were not parties to the contract. Nemo ex suo delicto meliorem suam conditiorem facerepotest.

A careful examination of the record discloses

No error.

Cited: Whitlock v. Lumber Co., 145 N.C. 125; Brittain v. Taylor,168 N.C. 273; Huntley v. McBrayer, 172 N.C. 644; Hinton v. Brinson,180 N.C. 397.

(164)