Opinion
June Term, 1842.
On a guaranty of a bond, the condition of which bond was that the obligors should at a certain time pay a certain sum of money "on receiving from the obligee a title" to certain land, the plaintiff cannot recover without showing a tender of a deed for the land to the obligors. In such a case it is not necessary to show a demand on the obligors for the money.
APPEAL from Dick, J., at Spring Term, 1842, of GUILFORD.
Badger for plaintiff.
Waddell and Iredell for defendant.
This was an action of assumpsit, brought by the plaintiff on the undertaking of the defendant, written on a bond of John Rutter and Samuel Swartwout, which bond, with the condition and indorsement of the defendant, are in the words following, to wit:
Know all men by these presents, that e, John Rutter and Samuel Swartwout, of the city of New York, are held and firmly bound unto Abel Gardner, Sr., of Guilford County, in the State of North Carolina, in the sum of $14,080, lawful money of the United States of America, to be paid to the said Abel Gardner, Sr., his executors, administrators, or assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents, sealed with our seals, and dated 14 April, 1838.
Whereas the said Abel Gardner, Sr., was appointed commissioner by a decree of the court of equity of Guilford County, made at February Term, 1837, for the sale of certain land in the said county, and whereas at the sale of said lands, in pursuance of said decree on 1 April, instant, the above bounden John Rutter became the purchaser of a certain (298) tract containing 82 acres, with the addition of 2 acres called Gardner's Gold Mine, of Guildford County, at the price of $7,042; and whereas the said land was so sold on a credit of two years, with the condition that the purchaser should give to the commissioner security for the payment of said purchase money at the expiration of the said two years, and, also, that the title should not pass to the said purchaser until the payment of the said purchase money according to the aforesaid decree: Now the condition of this obligation is such that if the said John Rutter, or his personal representatives or assigns shall at the expiration of two years from the said 1 April, instant, on receiving a title to said land, well and truly pay or cause to be paid to the said Abel Gardner, Sr., commissioner as aforesaid, the sum of $7,042, then this obligation to be void; otherwise, of force. JOHN RUTTER. [SEAL] SAMUEL SWARTWOUT. [SEAL]
Sealed and delivered in the presence of HENRY OGDEN, JOHN B. SICKLES.
The following indorsement appeared on this bond, to wit:
I, Roswell A. King, do hereby guarantee and bind myself and heirs to Abel Gardner, commissioner, for the payment of the amount of the within bond. 16 May, 1838. ROSWELL A. KING.
For the plaintiff it was proved that the foregoing bond was executed in the city of New York and brought to North Carolina; that the defendant was called on to say whether or not the bond was good, and he replied that it was. He was then informed that the obligee declined to accept the said bond unless he would guarantee it. The defendant thereupon consented to do so, and in pursuance of this purpose the indorsement above mentioned was written by the plaintiff's agent and signed by the defendant. The bond so indorsed was then delivered to the obligee, and by him accepted. There was no proof of a request by Rutter or Swartwout to the defendant, to guarantee or in any way to become (299) bound for the payment of the bond. No proof was offered of demand by the plaintiff or any one in his name, on the obligors, Rutter and Swartwout, for payment of the bond, or of any steps having been taken to collect it, or of tender by the plaintiff or any one for him of a deed for the land mentioned in the condition of the bond. There was no proof offered of notice by the plaintiff to the defendant of the default of the obligors, although he was informed, before the bringing of this suit, that he was and would be held responsible.
Upon this evidence the defendant objected to the plaintiff's recovery; first, because the condition of the bond required that a deed for the land should have been tendered before payment could be required, and, there being no evidence of this, there was no breach; secondly, that there was no evidence of consideration for the guaranty. His Honor having intimated that a demand on the obligors and notice of their default were necessary, the plaintiff, in submission to this opinion of the court, suffered a nonsuit and appealed.
The defendant in this case can be held responsible only to the extent of his engagement, and this cannot be construed to bind him further than that the obligors in the bond, which he guaranteed, should make payment according to its terms. These terms are explicit. The obligors are to pay "at the expiration of two years from the date, on receiving from the obligee a title to the land." The recital in the condition may properly be considered for the purpose of elucidating the meaning of the terms, where they are at all ambiguous; but there is nothing ambiguous in them. The payment of the price of the land is to be made upon receiving the title for the land, so that the receipt of title and payment of the purchase money are to be concurrent acts. Nor is there anything in the recital inconsistent with this construction. The (300) recital, indeed, declares that the title is not to pass until the payment of the purchase money — it shall not precede the payment; but it does not thence follow that it may not accompany the payment of the purchase money.
It is to be regretted that the bond was taken in this form. In judicial sales the securities taken for the purchase money should be peremptory for the payment of the money at the appointed day. The purchaser is to rely on the court for obtaining his title, who will take care that justice is done him.
Upon this ground — that a tender of a deed was not shown — we feel ourselves bound to affirm the judgment below. The acceptance of the bond was a sufficient consideration for the defendant's guaranty, and that consideration, if it did not appear on the face of the guaranty, might be proved by parol. Miller v. Irvine, 18 N.C. 103. It was not necessary to prove a demand upon the obligors for the payment of the money. The most that could be required was to show that the defendant had notice of a default on their part to make payment, as stipulated, before suit brought against him.
PER CURIAM. Affirmed.
Cited: Williams v. Springs, 29 N.C. 386.
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