Love v. . Welch

Smith, C. J., (after stating the facts). It is to be observed, that the defendant has never entered into a written contract to bind himself to pay for the land, and this is as necessary to impose an obligation on the vendee as it is upon the vendor. It is only required by the statute that the written instrument be signed by the party to be charged, or some one authorized on his behalf, and hence one may be bound and the other not by the contract. It is so ruled in Mizell v. Burnett, 4 Jones, 249, in which PeahsoN, J., delivering the opinion, says: “If one agrees in writing to convey land, in consideration of a verbal promise of the other party to pay the price, the contract is binding on the vendor, although the vendee may avoid the obligation on his part, if he chooses to protect himself under the provisions of the statute.” To same effect in Green v. N. C. R. R. Co., 77 N. C., 95. The difference in the relations of the parties to the contract, its obligation resting on one, and incapable of being enforced against the other, if he chooses to resist, must be considered in passing upon a demand for specific performance, and particularly the reasonableness of the delay in making it. “ If the one is bound and the other foot-loose,” (we quote from the same opinion,) “ the time must be short, for it would be unreasonable to keep the parties in so unequal a condition for a long time.” *205 . Here the evidence of the contract is contained in a written direction to the surveyor, given more than thirty years before the present suit was commenced, without any action on the part of the defendant, who alone could enforce it; without excuse for or explanation of the delay, and without paying any part of the inconsiderable sum due as purchase money. The vendor, and those who succeeded him, could not compel its payment, because no legal obligation rested upon the defendant, and if he had been bound by a written but unsealed instrument, the statute of limitation would have interposed a barrier to the recovery. The defendant’s long slumber upon his now asserted right, if not, unexplained, an abandonment, is strong evidence of an intent to abandon it. Again, during this long period of inactivity, the value of the property has advanced from fifteen cents to from one to three dollars per acre; and it is only when awakened by the plaintiffs’ action upon an asserted equity to have all the lands restored, and the supposed deeds annulled, that, without having paid any of the purchase money, he asks the Court to make the plaintiff convey the title to the smaller tract to him, on payment of the purchase money. Is this claim to be upheld, and has it any support in the equity which the Court administers ? The answer is found in an extract taken from 2 Story’s Equity Jurisprudence, §771: “ In general, it may be stated, that to entitle a party to a specific performance, he must show that he has been in no default in not having performed the agreement, and that he has taken all proper steps towards the performance on his part. If he has been guilty of gross laches, or if he applies for relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed.” The exercise of this form of remedial power, while in one sense discretionary, yet the discretion is not arbitrary, but is “ controlled and governed by the principles and rules of *206 equity to be found in the adjudicated cases,” (Pom. Cont. §36,) and hence we have considered the case in the light of them. 2 Story’s Eq. Jur., §742; Cannaday v. Shepard, 2 Jones Eq., 224; Lloyd v. Wheatley, Ibid., 267; Herren v. Rich, 95 N. C., 500. Again, his case is not properly presented before the Court in the answer, which, upon an allegation of payment, demands an unconditional conveyance of the title, while the fact is found by the jury that none of the consideration has been paid. The only exception taken by the appellant is to the refusal of the Court to render judgment for a specific performance of the contract upon payment of the purchase money for the 1757 acre tract, and in this ruling, we concur. There is no error. Judgment affirmed. No error. Affirmed.