Walker v. . Burrell

Homs, J\, after stating tbe case: Tbe instrument, after setting out tbe bargain of sale at $3,000, payable annually $300, with accrued interest on tbe entire debt, contained further stipulations as follows: “Now, therefore, if tbe said J. Nick Walker, on receiving tbe said purchase money, together with tbe interest thereon accrued, provided it be tendered any time within six months after the last payment falls due, shall well and truly at bis own proper cost and charge make and execute to tbe said Dennis Burrell and bis heirs a good, sufficient deed of conveyance with warranty and full covenant to convey and assure unto him, the said Dennis Burrell, and bis heirs a good, sure, and *388 indefeasible estate of inheritance in and to said tract of land, with the privileges and appurtenances thereto belonging, free and discharged of any and all encumbrance whatsoever, then this obligation to be void; otherwise, to remain in full force and effect.” There is nothing in the other parts of the contract or in the pleadings or evidence that matures and hastens the maturity of these payments otherwise than as expressed in the stipulation, as stated, and where this is true our decisions hold that no right of foreclosure for the entire debt or for any part of the same will arise to the vendee except at the termination of the designated period of ten years and six months — not because this is the more desirable method for either one of the parties, but because this is the bargain they have seen fit to make concerning the property. “Provided the purchase money be tendered at any time within six months after the last payment falls due” is the time agreed upon, and the Court can only enforce specifically the contract as made. These cases further hold that the vendor may have judgment for the portion of his debt which has matured at the time of action commenced; he can sue from time to time as other installments become due, to be enforced out of the other property of the vendee, except to the extent protected by 'the exemptions allowed him by law; and, if reasonably required for his protection and the proper enforcement of his claim, he is entitled to the present possession of the property and to protect and conserve the same by appropriate remedies; but he cannot, meantime, except by further agreement between the parties, sell the principal property or any part of it for the payment of his claim or any portion of it, because, as stated, the parties have made other contract concerning it. These positions will be found approved in Jones v. Boyd, 80 N. C., pp. 258-...; Harshaw v. McKesson, 66 N. C., 266, and other cases; and, on the facts admitted in the pleadings and established by the verdict, the plaintiff is entitled to judgment against the defendant for the amount due at the time the action was commenced, apparently three payments of $300 each, and accrued interest on the debt, subject to the credit of $150, to be levied on the general property of defendant, subject, however,' to the exemptions allowed him by law. And he is entitled, also, to judgment for immediate possession of the property, unless defendant shall presently pay the amount of plaintiff’s debt already matured and enter into a sufficient and satisfactory bond to pay the installments of the purchase price as they shall fall due, pursuant to the contract. This will be certified, that the judgment and verdict on the fifth issue shall be set aside and-judgment entered in accordance with this opinion. Modified.