The bill sets forth, that the plaintiff purchased from Benjamin Elliott, the testator of the defendants, the land mentioned in his bill, at the price of one hundred dollars, for which he gave his bond, and the said Elliott promised to make him a good title; that he took possession and made some improvements, after which, he discovered that Elliott had no title, the land being vacant; whereupon, he entered it himself, and took out a grant in his own name, and that he called upon Elliott to surrender up his bond, who refused to do so, but sued him upon it, and in 1840 recovered judgment, which he paid off in the year 1841. The bill charges, that at the time of the sale to him, Elliott knew he had no title, and prays that the defendants, the executors of Elliott, may account with and pay to him, the money so recovered and paid by him to the testator.
The defendants admit, that their testator had entered the land in question and had it surveyed according to law, and, in 1830 or 1831, made with the plaintiff a contract to sell to him for one hundred dollars; that at the time of the sale to the plaintiff, he, the testator, had taken out no grant, but merely held the land in entry; and allege, that the agreement between the parties was, that the plaintiff was to pay the purchase-money to the State and take out a grant in the name of the said Elliott, who was then to make a title to the plaintiff. And it was further agreed, that, if the plaintiff should suffer the entry to lapse, he was then to enter it in his own name. It further alleges, that the plaintiff did suffer the entry of the said Elliott to lapse, and, in accordance with the agreement, made his (409) entry and obtained his grant, and is now in the undisputed possession of the land, under a full and perfect title. The answer admits the recovery of the judgment and its payment by the plaintiff, and that the plaintiff's grant issued in 1833 — Benjamin Elliott died in 1840, and, after he had obtained his grant, the plaintiff made his several payments on his bond. *Page 321 The only witness, on behalf of the plaintiff, who speaks anything as to the contract between the parties is Col. Isaac Lamb, and, what he testifies, he states came from the plaintiff. He surveyed the land for the plaintiff, who on that occasion told him, that it had been agreed between him and Benjamin Elliott, that the entry of the latter should be dropped, as the witness expressed it, and that he, the plaintiff, should re-enter it, and in his own name, take out a grant for it, and, that they had made this agreement, because it would cost less money than to take out the grant in Elliott's name, who would then have to make him a deed, and Nance was to pay the expenses of the survey and the purchase-money to the State, all of which Elliott was to credit him for. We can not well see, why the case was not settled as soon as this testimony was taken. It is evident from it, that the statements of the bill were not true, and that those in the answer were. Nance must have known, at the time of his purchase, that Elliott had not perfected the title to the land, and it is evident, from his own testimony, that it was part of the agreement between him and Elliott, that the entry of the latter should be suffered to lapse, and a re-entry made by the plaintiff, after the lapsing of the entry made by Elliott. Another entry in his name could not be made of the same land, within twelve months thereafter; and all entries lapse and return to the State, and become subject to re-entry, whenever the purchase-money is not paid on or before 31 December, of the second year after the entry is made. Rev. St., c. 42, sees. 10, 11, 12. The re-entry, therefore, could not have been made by Nance in the name of Elliott, (410) within twelve months after its lapsing. But, the re-entry was made by him in pursuance of the agreement between him and his vendor. If he did not receive credit for the money paid by him, at the time the judgment was recovered, it was his own fault, in not claiming and laying before the jury his evidence to prove it. We do not see, however, how, upon his own statement, we could grant him the relief he asks. He does not, in his bill, seek to set aside the contract, but asks the Court to compel the defendants to return the money he has paid, and permit him to keep the land. He has now a good and indefeasible title to the land, and stands in no need of any assistance from the defendants to make it better. If the fact had been, as he states it, that he believed at the time of his purchase, that Benjamin Elliott had a good title to the land, and upon *Page 322 discovering the contrary, had applied to a court of equity to set aside the contract, or to complete the title by paying the necessary expenses, no doubt his prayer would have been granted, if sufficiently sustained by proof. Instead of pursuing this course, he undertakes to supply, and does succeed in supplying, the alleged defects of title. He now has all that he contracted for, and in equity has no claim for relief.
PER CURIAM. BILL DISMISSED.
Cited: Ramsour v. Shuler, 55 N.C. 491; Knight v. Houghtaling,85 N.C. 29.
(411)