Opinion
(December Term, 1860.)
1. A bill will not lie at the instance of the heirs, against the administrator of one who had executed a bond to make title, to enjoin the latter from making a deed to the obligee, upon the ground that he had not paid the purchase money, but fraudulently pretended to have had done so, and to nullify the contract. It would be the duty of the administrator, if the money, in such a case, was not collected, to enforce the payment, and he would be liable if he failed to do so.
2. The remedy of the heirs at law, in a case where the obligee had not paid the purchase money on a bond to make title, would be to file a bill against such obligee to compel a specific performance.
CAUSE removed from the Court of Equity of ROCKINGHAM. (153)
The bill is filed by the heirs-at-law of James D. Taylor, and sets forth that in 1834, their ancestor made a bond to convey a tract of land (describing it) to Anderson Crowder, whenever the purchase money for the same should be paid; that the said purchase money has never been paid; that the said Anderson was very poor, and was always unable to pay the sum agreed in said bond to be paid; that their ancestor died in 1839, and the said Anderson in ____; that no administration was taken on the estate of the said James D. Taylor until the defendant took out letters at August Term, 1856, of Guilford County Court, for the express purpose, as plaintiffs believed, of making a deed to the heirs of the said Crowder, on the assumption that the purchase money was paid to the said Taylor in his lifetime, and they say, by way of anticipation, that the defendants, the children of the said Crowder, are setting up certain mutilated bonds, from which the names of the obligor has been cut, which they pretend were given for the said land and paid and taken up by their ancestor in his lifetime; but that the same are feigned, and gotten up for the occasion. The prayer is that the administrator, Hooper, may be enjoined from making title to the premises, and that the said simulated papers may be surrendered for cancellation.
The defendants answered very fully, but as the merits of the equity as disclosed in the bill are alone treated of by the Court, a further notice of the pleadings is not necessary.
Morehead and Gorrell, for the plaintiffs.
Fowle, for the defendants.
This is a bill filed by the heirs-at-law of James D. Taylor against the administrator and heirs-at-law of Anderson Crowder, to enjoin the administrator from making a title to the latter, upon the allegation that their ancestor did not pay for it. The bill admits that Taylor executed a bond for a title, but alleges that the evidences (154) of payment have been fraudulently procured or fabricated. The prayer is that a conveyance of the land may be perpetually prevented by an injunction; or, if already made, that the deed may be recalled and cancelled, and that the evidences of payment may be impounded.
We think the plaintiffs have mistaken their equity. Their ancestor having entered into the bond, the administrator, under the provisions of the Revised Code, ch. 46, sec. 37, is bound to carry it into execution according to its conditions. If the money has been paid, the administrator's sole duty is to make the title; if it has not been paid, his duty is to collect, and, thereupon, to make title. So that, in either case, he is charged with the specific execution of this testator's obligation.
The equity of the heirs-at-law of Taylor, according to the allegations of their bill, and upon the supposition that the purchase money was never paid, would be to call for a specific performance themselves, and not to nullify the contract altogether; or, in calling the administrator to an account, they would have a right to regard the failure to collect this debt, or the making title without requiring its payment, as a culpable negligence or waste in respect to his assets, and make him account for the same.
The above view of the case is taken upon the allegations of the bill alone, disconnected from the answers and proofs. It is due to the latter to say that they do not leave the merits of the bill unaffected.
The complainants are not entitled to the relief they seek, and the bill must be.
PER CURIAM. Dismissed with costs.
Cited: Grubb v. Lookabill, 100 N.C. 271.
(155)