The right of the plaintiff to call upon the defendant, John Pearce, for a specific execution of his contract, for the sale (311) of the land in controversy, is clear beyond all question. The contract for the sale is in writing, a part of the purchase-money was paid in cash, and a note given for the residue, and the plaintiff thereupon took, and still continues in, possession. The plaintiff alleges that before the execution of the deed, in trust, by the said John Pearce to the defendant, Thompson, he tendered to Pearce the balance of the purchase-money, and demanded a conveyance, which was refused. And this defendant admitting the written contract of sale, and admitting also the tender, denies that it was in full, or was made before the execution of the deed in trust. The denial, however, is made so slightly and evasively as to have very little weight. It is true, that the tender was made after the note became due, but it is idle to say, as the defendant, John Pearce, does, that the contract was abandoned, and the plaintiff's equity relinquished. There cannot be the slightest pretense that this case is an exception to the maxim that in equity "time is not of the essence of the contract." See Falls v. Carpenter, 21 N.C. 237, and the note to Battle's edition.
The defendant, John Pearce, had then no right, upon his answer, to move for a dissolution of the injunction, and the other defendants have no greater rights than he has, as they do not deny that they purchased with notice of the plaintiff's claim.
The allegation, faintly made by the defendant, Marcellus Pearce, that the plaintiff assented to the sale by the defendant, Thompson, as trustee, is an averment of new matter which may possibly avail him, if he can prove it on the hearing, but it cannot be considered, on this notice to dissolve the injunction, it being and established rule that the injunction must be continued, unless the equity, set forth in the plaintiff's bill, be denied in he answer; Lindsay v. Etheridge, 21 N.C. 36. The order dissolving the injunction must be reversed.
PER CURIAM. Decree accordingly.
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