dissenting: On 8 January, 1910, the defendant agreed, in writing, to convey to the plaintiff the land described in the complaint, upon the payment to him of $1,000 and the release of a mortgage to J. C. Meekins, Sr., in full, or to the extent of $5,000 on that and other lands.
The plaintiff has at all times been ready, willing, and able to perform the contract on his part, and the defendant not only refused to do so, but he also denied that he had made the contract.
This statement is based on the verdict of the jury, which has never been disturbed, and is as follows:
1. Did the defendant execute the contract set out in the complaint ? Answer: Yes.
2. Did the plaintiff Bateman tender the defendant Hopkins the_ $1,000, part purchase money of the lands described in the complaint? Answer: No.
3. If not, was it waived by defendant Hopkins? Answer: Yes.
4. Was the plaintiff Bateman ready, willing, and able to pay off the indebtedness of said Hopkins to j. C. Meekins, Sr., and to pay the defendant Hopkins, in addition, the $1,000 balance of the purchase money? Answer: Yes.
5. What is the yearly rental value of the same? Answer: $150.
*71It therefore became necessary" to bring this action to compel specific performance, and it was adjudged herein, upon the verdict, at Spring Term, 1911:
“First. That the defendant, E. B. Hopkins, execute a deed conveying to the plaintiff, W. E. Bateman, in fee simple, the tract of land and improvements thereon described in complaint in this cause, and deliver said deed to the clerk of this court.
“Second. That as soon as plaintiff Bateman delivers to said clerk proper paper-writings releasing the real estate of the defendant Hopkins from its mortgage indebtedness to the extent of $5,000, and discharging the defendant Hopkins and his real estate from liability for said $5,000, and also deposits with said clerk the sum of $1,000 for use of defendant Hopkins, said clerk shall deliver said deed to plaintiff Bateman, and deliver said release of indebtedness and said $1,000 to said defendant Hopkins.”
The defendant refused to abide by this decree, and appealed to this Court, where the same was affirmed, the Court saying in the course of the opinion: “In this case the defendant will be fully protected in the enjoyment of every right he should have by requiring the payment of the money into court for his benefit, before he is called upon to part with his. deed. This is all he had a right to expect under the circumstances. The decree in this case conforms to established precedents, except, perhaps, in one respect, and that objection to it can be cured by amendment. It should have set a time, say sixty days after the adjournment of the court, for the payment of the money into court by the plaintiff, and then directed, if it was not paid by the expiration of that time, the suit should be dismissed with costs, which, of. course, would deny to the plaintiff any right to an enforcement of the contract, by reason of his own default after notice and reasonable time to pay or perform his part of the agreement.”
'When the cause again came on for hearing in the Superior Court, it was adjudged “that the plaintiff pay the money due as adjudged in the former judgment into this court, to wit, $6,000, on or before 15 June, 1912; and upon failure of the plaintiff so to do, his rights under said former judgment shall *72be denied and tbis action dismissed; ‘and upon compliance herewith by the plaintiff within the time above stipulated, it is adjudged that the defendant execute a good and sufficient deed for the premises, properly acknowledged and proven, and the same deposit with the clerk of this court within fifteen days after notice to him of payment and deposit of said money, to wit, $6,000, as aforesaid; and as thus modified the former judgment is in all particulars confirmed.”
The plaintiff paid $6,000 into the clerk’s office, as required by the last judgment, and the defendant again appealed.
It is now held that his Honor was in error in requiring the plaintiff to pay $6,000, and that he must pay $1,000 to the defendant, and in addition must secure the release of the $5,000 mortgage, which will require him to pay $5,000 and interest thereon from 8 January, 1910, or a total of $6,550 to 8 November, 1912.
During all this time the defendant has been in possession of the land, the annual rental value of which is $150, and it is said that he must not account for the rents. If the position of the Court is sound, and sustained by legal principles, it pays to break a' contract, because the defendant has undoubtedly gained the rental of the land for two years by refusing to perform his.
It also has the effect of requiring the plaintiff to pay $6,550 for land which the defendant agreed to sell him for $6,000, and this is brought about by the conduct of the defendant in the ■effort to repudiate his contract.
This seems to me to be a complete reversal of the doctrine fhat one cannot take advantage of his own wrong.
In my opinion, the Court misconceives the terms and effect of the original judgment, and holds 'the plaintiff to a contract which he has not made.
The plaintiff was not required by that judgment t'o pay tbe 'defendant $1,000, and to have satisfaction of the mortgage entered, but to pay $1,000 and to release the real estate of the •defendant from the mortgage indebtedness "to the extent of ■$5,000,” which imposed no greater obligation than the payment <of $6,000.
*73This judgment was affirmed by this Court, and the judge of the Superior Court then directed $6,000 to be paid into court by the plaintiff, which he did, and this is in accordance with the statement in the opinion upon the former appeal, that “the defendant will be fully protected in the enjoyment of every right he should have by requiring the payment of the money into court for his benefit, before he is called upon to part with his deed.”
If there is error, it is because of faithfully following our judgment.
I think, however, the last judgment rendered, requiring the plaintiff to pay $6,000, is not erroneous, as his liability was fixed by the first judgment to pay $1,000 and to release the lands from the mortgage to the extent of $5,000.
No interest should be charged, because the delay has been caused by the defendant, and he has been in possession of the land.
“In the absence of an express agreement to pay interest, if there is a delay in the performance of the contract, due to no fault of the purchaser, he is not liable for interest on the purchase money during such delay, unless he is in possession of the property sold.” 39 Cyc., 1570.
“Now, it is obviously inequitable, in the absence of express and distinct stipulation, that either party to the contract should at one and the same time enjoy the benefits flowing from possession of the property and those flowing from possession of the purchase money. The estate and the purchase money are things mutually exclusive. 'You cannot,’ said Knight Bruce, (then) Y. C., in a case arising out of the sale of some slob lands in Chicester harbor, 'have both money and mud.’ And so neither party can at the same time be entitled both to interest and to rents.” Fry Spec. Per., sec. 1399.
“Where the interest is much more in amount than the rents, and the delay in completion is clearly made out to have been occasioned by the vendor, tbe court, to' prevent the vendor from gaining an advantage by his own wrong, gives him no interest, but leaves him in possession of the interim rents.” Fry Spec. Per., sec. 1404.
*74In some courts this rule is not followed, but when interest is charged against the vendee the vendor in possession is chargeable with rents, upon the ground that the vendee becomes the equitable owner of the land upon the execution of the contract. Marx v. Oliver, 246 Ill., 316; Bostwick v. Brock, 103 N. Y., 423.
In the last case the Court says: “Where the purchaser is ready and willing to perform, and the delay is on the part of the vendor, the purchaser is entitled to the rents and profits from the time when, according to the terms of the contract, possession should have been delivered, or, if the vendor has remained in possession, he is chargeable with the value of the use and occupation from the same period, and the purchaser is chargeable with interest on the purchase money if it has remained in his hands unappropriated. But where it has been appropriated, and notice thereof given to the vendor, and the purchaser has received no interest thereon, he is not liable, to pay interest to the vendor. (Fry on Specific Performance, 481, 483, 889; Dias v. Glover, 1 Hoff. Ch., 71, 78; Story’s Eq., sec. 789; Worrall v. Munn, 38 N. Y., 137, 142.)”
Under the opinion of the Court, the vendee must pay interest and the vendor receives the rents, and this ruling is attempted to be justified by the statements that) “The defendant has not broken the contract, but merely insists, as he has the right to do, on its performance. It is the plaintiff who seeks to benefit by its breach. The facts are all that way in the record, and cannot be changed by construction or argument. The plaintiff is in the' wrong, and seeks to take advantage of it, and, we think, most inequitably. We have already gone to the verge of the law and the facts to enforce the contract in plaintiff’s favor, and we should not advance a step beyond.”
If this is a correct interpretation' of the record, we have, in the former opinion, not only gone “to the very verge,” but we have taken the fatal step, as we have affirmed a decree for specific performance against a defendant who has not broken his contract, and in favor of a plaintiff who is in the wrong and seeks to take advantage of it most inequitably.
*75Specific performance is not decreed in behalf of plaintiffs who are in the wrong and who have acted inequitably. Justice Connor, in Boles v. Caudle, 133 N. C., 534, quotes from Judge Gaston, that “The specific performance of a contract in equity is a matter not of absolute right in the party, but of sound discretion in the court. Although it be valid at law, and, if it had been executed by the parties, could not be set aside because of any vice in its nature, yet if its strict performance be under the circumstances hard and inequitable, a court of equity will not decree such performance, but leave the party claiming it to his legal remedy”; and Justice Walker says, in Wool v. Fleetwood, 136 N. C., 472, that granting relief by compelling specific performance “is a matter of sound judicial discretion, controlled, it is true, by established principles of equity, but exercised only upon a consideration of all the circumstances of each particular case.”
I do not think, however, the statements are sustained by the record. The plaintiff alleged the execution of the contract in his complaint, and the defendant denied it, and refused performance.
The jury found that the defendant made the contract. These facts undoubtedly constitute a breach of the contract by the defendant. The jury also found that the defendant had waived the tender of the $1,000, which was to be paid by the plaintiff, and that the plaintiff was ready, able, and willing to perform the other parts of the contract. This does not put the plaintiff in the wrong.
It will also be seen by reference to the original decree in this action, which has been affirmed, that the first act required to be done by either party was the execution of the deed by the defendant, which he has not done.
Clark, C. J., concurs in this dissent.