The following facts were disclosed by the pleadings and proofs.
On 10 November, in the year 1836, the defendant, for the consideration of $300, executed in writing, under his hand and seal, and agreement with the plaintiff, to make him a good title in fee to a tract of land of one hundred acres, more or *Page 470 less, it being the land which the defendant purchased of David Roberts, lying in Buncombe County, on the waters of Haw Branch. The purchase-money was secured by notes of hand, payable in installments in three years from the date of the agreement. It was, at the same time, by a separate instrument, further agreed by and between the parties, that Henry Wells was then to be let into possession, and to hold the place for three years, by paying 125 bushels of corn per annum as rent; "but that the said 125 bushels of corn per annum is to go to pay for the place at cash prices, if the said Henry Wells pays for the place in three years; if not, the annual payment of the corn is to be the rent, and the said Henry (597) Wells is to give up the possession of the place to Robert P. Wells, with all improvements, etc." The plaintiff in his bill states, that he has paid to the defendant and his assignees of the said notes, the principal money and interest; that the entire payment was completed in 1840; that he then called for a legal conveyance of the said land from the defendant, which he refused to execute. The prayer of the bill is for a specific execution of the said contract.
The defendant in his answer, admits the written contract of purchase or lease as stated in the bill. And he further says that the plaintiff failed to pay the notes within the three years; that on 11 November, 1839, it was further agreed between them, that the payments which had been made should go as rent, and not as payments on the notes; and that it was then further agreed on, if the plaintiff would go on and pay off the said notes, independent of the rent already paid, that the defendant would let him have the land, and execute a deed for the same, but he says that the consideration was intended to be $350, and $300 was by mistake inserted in the written agreement. There is a replication to the answer. There is no proof in the case of any mistake having been committed, in inserting in the agreement $300, as the consideration for the land. There is proof that the defendant, on 11 November, 1839, demanded a surrender of the possession of the land, on the ground that all the purchase-money had not been paid within the time stipulated. To which demand the plaintiff refused to yield, and said he did not want to give it up, he had done too much work on it, that he would keep the place and pay for it. He then said that he would let *Page 471 what he had paid go as rent, according to the written articles. All the advancements in money, stock, and corn, which the plaintiff had made for three years, the defendant insisted to retain (598) as rent, and also to force the plaintiff to pay beside in full the notes and interest, which had been originally given for the purchase of the land. This unreasonable demand was made on the very next day after the time for full payment had expired. It is plain from the terms of the original written contract, that the plaintiff intended to hold on upon the land, as a home, if he could by any means pay for it, and if he found out that it would be impossible for him to raise the purchase-money, that he should then have the liberty of being considered as a tenant for three years, at the rent of 125 bushels of corn per annum. The plaintiff, on 11 November, 1839, refused to abandon his contract of purchase. The parol agreement, extorted that day from him, was unreasonable and without any consideration in this Court; for the time mentioned in the contract for completing the payment of the purchase-money is generally not, in this Court, of the essence of the contract. Indeed, the defendant was, himself, not in a condition to rescind the contract of purchase or declare it at an end, as he did, upon the ground of its not having been literally performed by the plaintiff in making payment to the very day. For, before that time, the defendant had assigned one of the bonds for $100 to another person, who took it without recourse to the defendant, and on the sole credit of the plaintiff, who duly paid it. After having thus virtually received one-third of the purchase-money, over and above the sums which he now claims to keep as rent (which of themselves amount to nearly one-half of the purchase-money), the defendant can not be permitted, in this Court, to insist on the forfeiture of either of his payments or the land by the plaintiff, when the latter has since paid, or is willing to pay, the whole purchase-money agreed on, and the interest accrued thereon.
It therefore seems to us that the plaintiff is entitled to a decree for a specific execution of the contract, if he has paid the purchase-money as stated by him in his bill, or if he shall now pay what may be found due by a report of the master.
We are of opinion that a reference must be made to uncertain whether the consideration money has been (599) paid, and if not, what sum remains unpaid.
PER CURIAM. DECREED ACCORDINGLY. *Page 472