This was a bill filed by the complainant against the defendant, praying for the specific execution of a contract for the sale of lot of land number seventy-four, in the sixth district of Early county. On the trial of the case the jury found a verdict for the defendant. A motion was made for a new trial on the several grounds set forth in the record, which was overruled by the Court, and the complainant excepted. In our judgment the objection to the interrogatories of Stamper was well taken and they were properly suppressed by the Court. The interrogatories were returned by the witness Stamper to a former Clerk of the Court in vacation, and had the following entry on the back of them: “ Received of M. W. Stamper the within package, who says that he received them from one of the commissioners, and that they have been unopened and *146unaltered. Sworn to and subscribed before me, this 18th of Marchj 1871, W. H. DuBose, Clerk.” This affidavit of Stamper was not signed by him. It was shown by the present Clerk, that he, some time after the last term of the Court, and Dubose, the former Clerk, found the package in an iron till on the floor in the corner of the room in the Clerk’s office; that Dubose handed it to him, and that it had been in his possession ever since unopened and unaltered. The former Clerk (whose absence was not accounted for) was not introduced to account for the package from the time he received it in vacation up to the time it was found in the iron till upon the floor and delivered to the present Clerk. In the first place, the interrogatories were not received in open Court, as required by the 3834th section of the Code. Secondly, Stamper did not sign the affidavit when he returned them to the Clerk in vacation; and thirdly, the custody of them was not accounted for from the time they were received by the former Clerk in vacation, until found and handed to the present Clerk. To allow interrogatories to be received and read in evidence under this statement of facts would be to establish a dangerous precedent, the more especially when the interrogatories, as in this case, were returned by the witness himself, who was interested in the litigation as is shown by the record. It appears from the evidence had on the trial, that the defendant, on the 11th day of May, 1863, executed his bond to the complainant in the sum of $2,000, conditioned to make him a title to lot number seventy-four, in the sixth district of Early county, by the first day of January, 1864. There is no special allegation in the complainant’s bill for invoking the aid of a Court of equity to decree a specific execution of this contract, or why his common law remedy for a breach of the bond was not adequate and complete; but the defendant does not appear to have raised that question; he answered the bill and alleges that he made a contract with Stamper to exchange with him lot of land number seventy-four for lot number eighty-five; that as Stamper had not paid Mitchell’s estate for lot eighty-five, he did not have the title *147then to convey to the defendant, but would in a short time pay the money and procure the title, and in the meantime each party should execute their bonds to make titles to the respective lots of land. The negotiation for the exchange of the two lots of land was mainly conducted by Christian on the part of Stamper. On the 30th April, 1863, Stamper wrote the following letter to the defendant:
“Mr. James B. Ransome — Sir: Upon consultation, and my own opinion, it will be well to give bond, as I have no deed. You can make Dr. Christian a deed or give him a bond to make title when I make you a title. I make a bond to make title when the note is due, you make one and send the bond by the Doctor.”
It is quite clear, we think, that the trade was made for the exchange of the lots of land between the defendant and Stamper; they in fact were the contracting parties. Stamper executed his bond to the defendant on the, 28th of April, 1863; conditioned to make him a title to lot number eighty-five by the first day of January next, after the date thereof.
The defendant alleges, in his answer, that the complainant fraudulently procured the bond to be made payable to himself, instead of to Stamper, with whom the contract was made unconditional, as therein specified, without reciting the terms of the contract between him and Stamper for the exchange of the two lots of land, and that Stamper never paid the money to the Mitchell estate, and departed this life without having procured a title to lot number eighty-five, and that -it would be inequitable and unjust to require the defendant to specifically perform the contract under this statement of facts.
On the trial the evidence was conflicting as to the manner in which the bond to the complainant was procured from the defendant, but there is one leading and controlling fact stamped on the face of this transaction, and that is, that the contract for the exchange of the lots of land was made between Stamper and the defendant, whatever part Christian, the complainant, may have acted in the matter. Mere inad*148equacy of price, though not sufficient to rescind a contract, may justify a Court in refusing to decree a specific performance. So also any other fact, showing the contract to be unfair or unjust, or against good conscience. Code, section 3134. In view of the facts of this case, as disclosed in the record, we cannot say that the verdict of the jury was contrary to the evidence and the principles of justice and equity, nor do we find any material errors in the charge of the Court to the jury, or in the refusals to charge as requested. In our judgment, the motion for a new trial was properly overruled.
Let the judgment of the Court below be affirmed.