SEAWELL, J., concurring in result. Civil action by grantors to enforce resale and reconveyance of land pursuant to stipulation in deed poll.
It is alleged that on 17 March, 1945, the plaintiffs conveyed to Emory Joines, then unmarried, a lot with buildings, situate in the Town of Boone, by general warranty deed duly registered in Watauga County; and further, that on or about the same day, the grantee agreed to sell the property back to the plaintiffs, one year from date of deed, at plaintiffs' election, and this agreement was inserted in the deed, immediately following the description of the property, in words and figures as follows:
"Provided that said party of the second part agrees to sell . . . said property back to said parties of the first part for the sum of $4,000 one year from date of this deed, provided said parties of the first part so desire."
Plaintiffs further allege that on 15 February, 1946, the defendant was duly notified of plaintiffs' desire to repurchase the property in accordance with the agreement, and the repurchase price was tendered, which the defendants refused, and they still refuse to reconvey the premises as per stipulation in the deed.
Wherefore, plaintiffs asks for specific performance and for such other and further relief as may be meet and proper.
It is alleged in the answer that the purchase price of the property was $4,100; that the stipulation concerning the resale for $4,000 was not in the deed when shown to defendant and approved by him, and was not discovered by him until after the deed had been registered. It is further alleged that this provision was fraudulently inserted in the deed by M. J. Williams, as he knew the defendant intended to improve the property; and in resistance to plaintiffs' demand for specific performance, the defendants plead the statute of frauds. G.S., 22-2.
On the hearing, the plaintiffs were not allowed to offer the deed in evidence, because not signed by the party sought to be charged, or by any other person by him thereto lawfully authorized. Whereupon, the plaintiffs suffered an involuntary nonsuit and appealed. It is alleged that the deed in question constitutes the written contract between the parties. It was therefore competent for the plaintiffs to offer it in evidence as a part of their case.
The clause in the deed which provides for a reconveyance on the conditions stated, nothing else appearing, would seem to stamp the transaction as a conditional sale. Poindexter v. McCannon, 16 N.C. 373;King v. Kincey, 36 N.C. 187, 36 Am. Dec., 40; Waters v. Crabtree, *Page 143 105 N.C. 394, 11 S.E. 240; Gillis v. Martin, 17 N.C. 470. "Generally, a conveyance of land between parties who do not bear the relation of debtor and creditor, made upon a stipulation that the grantor may repurchase, is a conditional sale and not a mortgage, . . ." 41 C. J., 326. See Ferguson v.Blanchard, 220 N.C. 1, 16 S.E.2d 414; O'Briant v. Lee, 212 N.C. 793,195 S.E. 15; S. c., 214 N.C. 723, 200 S.E. 865.
It is very generally held for law, here and elsewhere, that a "grantee in a deed poll, containing covenants and stipulations purporting to bind him, becomes bound for their performance, though he does not execute the deed." Herring v. Lumber Co., 163 N.C. 481, 79 S.E. 876; Henry v.Heggie, 163 N.C. 523, 79 S.E. 982; Bank v. Loughran, 122 N.C. 668,30 S.E. 17; Long v. Swindell, 77 N.C. 176; Finley v. Simpson, 2 Zab. (N. J.), 311, cited with approval in Maynard v. Moore, 76 N.C. 158.
We are not now concerned with the exact form or extent of recovery, but whether the case as made survives the demurrer. One who would take the benefits of a contract must assume its burdens, or else bear the consequences attendant thereon. Oil Co. v. Baars, 224 N.C. 612,31 S.E.2d 854; Ballard v. Boyette, 171 N.C. 24, 86 S.E. 175; Burns v.McGregor, 90 N.C. 222. Suffice it for present purposes to say the deed should have been admitted in evidence, even if the plaintiffs be limited in their choice of remedies to an annulment of the contract or an assessment of damages. Oil Co. v. Baars, supra. It will be time enough, if then necessary, to consider the rights of the parties under the stipulation after the defendants' plea of non est factum has been determined. Its effect under the pleadings may well await this determination.
The judgment of nonsuit will be vacated and the cause remanded for further hearing.
Reversed.