#### W. E. BATEMAN v. E. B. HOPKINS.

(Filed 20 November, 1912.)

1. Contracts to Convey Lands — Judgments—Appeal and Error— Rents and Profits — Accounting—Interest.

When a contract to convey lands requires of the grantee, as a part of the consideration, that he shall pay off an outstanding mortgage on the lands, amounting to $5,000, and $1,000 in cash to the mortgagor, and it has been so decreed by the Superior Oourt and affirmed by the Supreme Court, an order rendered at a subsequent term of the Superior Court that the $6,000 be paid into the office of the clerk of the Superior Court and thereupon’ grantor’s deed to the land be delivered by the clerk to the grantee, is erroneous; and on the second appeal it is further *60 Held, (1) that as the vendee had failed to comply with the terms of his contract, he was not entitled to an accounting by the vendor, in possession, of the rents and profits; (2) that under the judgment first rendered the vendee was obligated to discharge the mortgage indebtedness, including interest thereon, and therefore the vendor should not be held accountable for the interest thereon.

2. Appeal and Error — Judgments—Collateral Attack.

When, in an action for the specific performance of a contract to convey lands, it has been decreed that the plaintiff comply with his part of the contract by relieving the defendant’s land from the outstanding lien of a mortgage thereon, the plaintiff cannot for the first time on appeal show by affidavit that the mortgage secured several notes, payable by installments, the last of which had hot matured, when no such matter was stated in the record; and the judgment may not be thus attacked collaterally.

3. Contracts to Convey Lands — Pleadings—Judgments—Merger.

In an action to enforce specific performance of a contract to convey lands, it was alleged in the complaint, and denied in the answer, that the plaintiff was “at all times ready, willing, and able to perform the contract on his part”; and by the defendant, which was denied by plaintiff, that he had not executed the contract sued on. It was established by the verdict and judgment that the contract had been made, but that there were certain conditions in the contract forming a material part of the consideration, which the plaintiff had not performed: Held( the issue raised by the pleadings had merged in the judgment.

4. Appeal and Error — Erroneous Judgments — Motion to Dismiss.

The plaintiff, in an action to enforce specific performance of a contract to convey lands, paid the money into court upon a decree entered in the Superior Court under a misconception of an adjudication by the Supreme Court on a former appeal, affirming the judgment rendered in the lower court: Held, a motion by defendant to dismiss the cause on the ground that the plaintiff had not complied with the former judgment of the Superior ■ Court will be denied.

Aklen, X, dissenting; Clark, C. X, concurring in dissent.

Appeal by defendant from 0. II. Allen, J., at Spring Term, .1911, of TYRRELL.

Tbe facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

*61 ~W. M. Barnes and Meelcins & Tillett for plaintiff.

M. Majette and E. F.- Aydlett for defendant. .

"WalKeh, J.

Tbis case was before us at Fall Term, 1911, and is reported in 157 N. C., at page 470. Tbe facts aré therein fully stated. 'By judgment of tbe Superior Court of Tyrrell County at Spring Term, 1911, Judge 0. H. AUen presiding, tbe plaintiff was required to file witb tbe clerk of tbe court a proper release of tbe $5,000 debt and mortgage, “discharging tbe defendant, E. B. Hopkins, and bis real estate from liability for tbe said $5,000,” and further, “to deposit with tbe clerk tbe sum of $1,000 for tbe use of E. B. Hopkins,” tbe clerk being required to deliver tbe release and pay tbe money-so deposited witb him to defendant Hopkins, and to deliver Hopkins’ deed, which was required to be duly executed by tbe latter and deposited with him, to the plaintiff.

Tbe only modification of tbe judgment by tbis Court consisted in a clause giving reasonable time for a compliance witb tbe judgment and requiring strict performance by tbe plaintiff of bis part of tbe contract, and denying him a sale of tbe land. It was not intended, and it clearly appears not to have been intended, to change tbe former judgment in any other substantial respect. It is nothing but fair and just, and is something demanded by an equitable consideration of tbe rights of tbe parties, that tbe plaintiff should release and discharge tbe defendant from any and all liability f,or tbe debt of $5,000, and, besides, tbis is “nominated in tbe bond.” "When tbis is done, and tbe clerk has received tbe release and tbe $1,000 and tbe defendant has executed and delivered to tbe clerk for tbe use of tbe plaintiff bis deed for tbe land in dispute, tbe clerk will then deliver tbe papers and pay tbe money as directed by tbe judgment.

Tbe judgment of tbe Superior Court, as last rendered, does not, in- form or substance, contain those provisions, • one of which was that tbe plaintiff should release tbe defendant from tbe liability on tbe mortgage debt, and bis land from its lien, and tbe other that be should pay him, in addition, $1,000. He bad been directed by Judge Allen to do these things, and, without changing that part of tbe judgment, we also distinctly *62required Mm to “pay the money ($1,000) into court, and otherwise comply with, his part of the contract within a reasonable time.” It is perfectly plain, therefore, that he must do all that is necessary to release the defendant from the indebtedness and the mortgage securing it, and also' pay the $1,000; but the last judgment of the Superior Court only, requires him to pay $6,000, which may not be sufficient for the purpose, as interest had accrued on the debt. It is recited in this judgment that the former judgment only required the payment of $6,000 by the plaintiff, but this is clearly an oversight, as we have shown. The plaintiff was required to have the debt and the lien of the mortgage released, and this he must do.

In the complaint (section 11) it is alleged that plaintiff had arranged -with the holder of the mortgage debt to relieve defendant’s property from the lien of the same, but this is denied in the answer, and there is no finding in the verdict with respect to it. It is stated, in an affidavit filed at this 'term by the defendant, that the mortgage debt was payable by installments, the last of which will mature January 1, 1916, and interest will continue to accrue; but we can take no notice of this allegation, as there is no such fact stated in the record, and the judgment cannot be attacked collaterally or amended or modified in the way suggested. But it may not be a practical question, as the former judgment, as we interpret it, requires the plaintiff to cancel the debt and mortgage and relieve the defendant from all liability therefor. If it appeared that plaintiff had obtained a sufficient release and made a tender of it and the mortgage notes to the defendant, or had caused the mortgage to be canceled on the record and tendered the notes to the defendant, who rejected the tender, the question of defendant’s liability to account for rents after the tender might have arisen, but no such question is presented in the record.

It is suggested that defendant should account for rents and profits of the land received by him since the appeal was taken, as he has thus delayed a final settlement of the matter. If by this is meant that he should account for them from the date of the first appeal, the answer is that the defendant was simply exercising a legal right when he prosecuted an appeal to this *63Court to test the validity of the court’s rulings, and there is no rule of the law, or special rule of this Court, as there is in some appellate courts, under which he can be penalized for so doing, even if the appeal was merely for delay. The first appeal was by no means a frivolous one, as serious questions were presented for our consideration, and the solution of them was not free from difficulty. As to the second appeal, we have decided with the defendant, and certainly he should lose nothing because he succeeded in it. But the more conclusive answer is that the plaintiff did not comply with the conditions of the contract, that he should release the land from the mortgage debt, before this suit was brought, nor has he since complied therewith. The judgment, signed by Judge Allen, required him to release the mortgage debt — plainly so — and we affirmed that judgment and specially directed that he must - “pay the money due (which was $1,000) into court” and “otherwise comply with his part of the contract” — that is, release the mortgage debt, for there was nothing else to do. If and when he performed his part of the duty, the defendant was required to execute and deposit the deed, and upon his doing so, he was to receive the money from the clerk and surrender the possession of the land. The plaintiff was not entitled to the possession of the land, and consequently not to the rents and profits, until he had complied fully with the judgment of the court, and surely the defendant cannot be made to pay damages, in the way of rents and profits, for a delay caused by plaintiff’s own failure to obey the order of the court. It is well to add that, while we have deemed it proper, under the circumstances, to discuss the question as to the rents, it is not presented in the case by any exception or otherwise. The plaintiff did not appeal, and we are not at liberty to decide matters not before us.

But it is suggested that defendant agreed to sell land to plaintiff for $1,000, and to release the mortgage only “to the' extent of $5;000 on that and other lands.” If by this is meant that the plaintiff was required to pay only $6,000, that is, the $1,000 in cash and $5,000 towards liquidating the mortgage debt, it is not by any means sustained by the admitted facts, nor is it true that plaintiff “has, at all times, been ready, willing, and *64able to perform tbe contract on bis part, and tbat defendant refused to perform bis part.” Tbe plaintiff alleged tbat be was ready to perform bis part of tbe contract, in bis complaint, but tbis is squarely denied in tbe answer. (Record, p. 5, and 7th section of tbe complaint, and p. 7, and sections 7 and 8 of tbe answer.) Tbis allegation and denial mad© up an issue, and there is not a sbred of evidence in tbe case to sbow tbat plaintiff ever offered to comply witb bis contract, by tendering tbe release, as expressly stipulated in tbe contract and as required by tbe first judgment, wbicb was affirmed by us. Tbis feature of tbe case was not overlooked in tbe former opinion, but distinctly observed and considered. It is also now alleged tbat defendant not only refused to perform tbe contract, but denied its execution. True, be denied it, as be bad tbe legal right to do, and tbe jury, upon evidence clearly preponderating in favor of defendant, as it seems, found against him, and we are not permitted to review their verdict. But all tbis prolonged controversy, so much emphasized as chargeable against tbe defendant, was merged in tbe judgment of Judge Allen, which required — and we quote tbe language again — not tbat tbe plaintiff should pay $6,000 into tbe court, but tbat “be should deliver to said clerk proper paper-writings releasing the real estate of the defendants from, its mortgage indebtedness to tbe extent of $5,000, and discharge tbe defendant Hopkins and bis real estate from liability for said $5,000, and also deposit witb tbe clerk the $1,000 (cash payment) for use of defendant Hopkins,” and when tbis is done, “tbe clerk shall deliver tbe deed of Hopkins to tbe plaintiff Bateman.” And'what is next: And be shall also “deliver said release of indebtedness and said $1,000 to defendant Hopkins.” Plaintiff has never tendered < amy hind of release, and tbis is tbe gist of tbe matter. How could such a judgment mean tbat plaintiff should pay $6,000 into court, unless tbat amount was accepted by tbe mortgagee as a payment of bis entire claim, and be should thereupon execute and deliver to tbe defendant, or to tbe clerk of the court, bis release of tbe debt and mortgage? Is not tbe expression, “to tbe extent of $5,000,” merely descriptive of tbe principal of the debt and of tbe amount secured by tbe mortgage? Tbis is made too *65plain for discussion by wbat follows, to wit, “and discharging the defendant Hopkins and his real estate from liability for said $5,000.” It is perfectly manifest that the money to be deposited with the clerk was the $1,000, the cash payment, and the other requirement was that plaintiff should have the mortgage released. But all this is made absolutely clear by the plaintiff’s own allegation in his complaint. The allusion to the $5,000 is to the principal of the debt, which, of course, in law, carries interest, as will appear .from the following extract taken from the complaint:

“SbctioN 4. By the terms of said contract plaintiff was to-assume the payment of certain notes outstanding, which had been executed by said defendant, being secured by a deed of trust or mortgage deed executed by E. B. Hopkins and wife, Lula M. Hopkins, to C. W. Tatem and Ella G. Tatem, dated March 12, 1906, and recorded in the office of the Register of Deeds of Tyrrell County, North Carolina, in Deed Book 53, page 425; said notes aggregating the sum of $5,000, said mortgage securing the same, conveying several certain other parcels of land than that parcel described in section 1, and said plaintiff was to pay said defendant $1,000 in cash, in addition, in consideration of (plaintiff) assuming the payment of said notes (which, of course, includes interest) and canceling and relieving said mortgage liens upon said defendant’s property.”

It would seem to be sufficient to say that Judge Allen’s judgment required, in express and positive terms, that plaintiff should file a release of the encumbrance as a condition precedent to his right to have the deed, and we affirmed that judgment, and not only did we affirm it, but ourselves expressly required'plaintiff to do so, in unmistakable language; and that was a unanimous decision. The money required to be paid into-court was the $1,000, and not the $5,000, for that would not “release or discharge the mortgage,” being only the principal of the debt. Who could reasonably suppose that a creditor would receive less than his claim? and unless he did so, how could the debt and mortgage be “released and discharged” ? It was further at the option of the creditor to release,. and defendant was not required by the contract to take this chance, *66but tbe plaintiff. We have beld tbat the judgment directing plaintiff to pay into court $6,000 was erroneous, because it was a clear departure from Judge Allen’s judgment, affirmed by tbis Court. To decide otherwise would be to make the defendant give up his home, not only upon questionable evidence, but directly contrary to the written words and spirit of the contract.

To put the case succinctly, plaintiff is simply required to perform the contract as it is written, and not as it has been reformed by the last judgment. The whole argument to the contrary is based entirely upon a mistaken assumption of fact, not at all sustained by any of the evidence.

It is first assumed that plaintiff will be required to pay interest, when that is what he promised to do, as the creditor is entitled to receive it, and cannot be forced to release his mortgage until he does. The defendant has never received any money, or had the use of any, and the plaintiff is not entitled to the deed and possession of the land until he tenders, not money, but the release called for in the contract. If he persists in refusing to make the proper tender, he must take upon himself the penalty, that is, he must pay, not to defendant, but to the mortgage creditor, the interest accrued by reason of his plain default. .

The defendant has not broken the contract, but merely insists, as he has a 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 defendant never agreed to sell the land for $6,000, but for $1,000 and a release of the mortgage, and whatever it takes to procure this is the measure of plaintiff’s liability. He must deal with the mortgage creditor and get the release, and not with defendant. The plaintiff is in the wrong and seeks to take advantage of it, and, we think, most inequitably. We have already gone to the very verge of the law, and the facts, to enforce the contract in plaintiff’s favor, and we should not advance a step beyond.

It is of no use to argue that, generally, in foreclosure and redemption suits, rents and profits should offset interest. That *67is not this case, and bears no resemblance to it. Tbe defendant has not delayed the execution of the agreement, and could not be put in default until plaintiff had performed his part of the same by paying the $1,000, and tendering a good and sufficient release. If interest accumulated on the principal of $5,000, it was, as we have said, his fault. The contract, the judgment of Judge Allen and the judgment of this Court, explicitly told him what his obligation was, and he has failed, so far as the case discloses, even by any attempt, to comply with it. He cannot escape by pleading an erroneous judgment rendered below upon our certificate.

It is strange to contend that the interest has accumulated by defendant’s default/ even in the best view for plaintiff, as defendant, by his appeals, was merely pursuing the course which the law allowed to him in the vindication of his rights. This is the first time it has been suggested, we think, that a litigant must be penalized for appealing to this Court to- review and correct alleged errors below, especially when we have modified one judgment and reversed the other.

The increase of the sum to be paid, by adding the interest, is no change of the amount of the debt, which was $5,000, the interest being only an incident and given to the creditor by his contract and by the law. This not infrequently happens in every appeal, and is one of the necessary results or concomitants of litigation. But the conclusive answer to all these suggestions is, that no such point is raised in the record, the defendant having appealed and not the plaintiff, and the latter nowhere, in the whole course of the litigation, has ever,, in a legal sense, claimed the right, now for the first time urged in his behalf, that the defendant should account for the rents.

The plaintiff’s claim that rents should be paid by defendant is based entirely upon a misconception of the relations of the parties. It is said the defendant denied the contract, and the jury found against him, and this constitutes a breach. Not at all; and this false premise or assumption has led the plaintiff into the error of supposing that defendant is in the wrong. The plaintiff is required to do more than merely show a contract ; he must also show performance on his part, as he seeks *68to enforce it, or, at least, a tender of performance, before be can put defendant in tbe wrong; and tbis be bas not done. Tbe jury said that be was ready and able to pay off tbe mortgage indebtedness, but be bad not tendered performance as to either. His readiness to perform is not wbat tbe law or tbe first decree required of bim, but tbe actual payment of $1,000, and tbe actual tender of tbe release. Tbe rights and duties of tbe parties were ascertained and declared in tbe first decree, and that distinctly required tbe payment of $1,000 and tbe tender of tbe release, and, moreover, was affirmed by us.- So it will not do to argue that defendant is in tbe wrong and, therefore, should pay tbe rents, because tbe tender of tbe release by plaintiff was a condition precedent to tbe execution of tbe deed and tbe surrender of possession by defendant. It is sufficient' to say, in answer to plaintiff’s contention, that plaintiff himself is in tbe wrong, because be bas never complied with the-decree of tbe Court, and defendant cannot be in tbe wrong so long as plaintiff fails to do so.

It is not a case of having “both money and land,” for tbe promise of plaintiff (vendee) was not to pay money alone, but to pay money ($1,000) and to file a release, tbe latter of which be bas not done, nor does be pretend to have done it. Tbe stipulation is joint and entire, and tbe whole must be performed before tbe time comes for defendant to give up tbe deed and- tbe land.

Again, defendant bas bad no- use of tbe money, actually or constructively. Plaintiff paid $5,000 into court, and be now asserts that it is tbe same as depositing a release, which it clearly is not, and both Judge O. H. Allen and tbis Court have said so, and for tbe reason that it is not so stated in tbe bond. Tbe money would not buy tbe release, as tbe debt and mortgage will not mature for some years, and interest bas accrued and will accumulate, and therefore it is that tbe vendor (defendant) contracted specifically for a release, and not for the money. So that it cannot possibly be gainsaid that plaintiff bas been in default from tbe beginning, and certainly since tbe first judgment of tbe lower court, by which be is bound and concluded,, not having appealed therefrom, be not having complied with its *69essential and chief mandate, that be should file a release of the debt and mortgage, which are liens on the other lands of defendant. An apt statement of the law will be found in Bostwick v. Brock, 103 N. Y., 423:

“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 for the same period, and the purchaser is chargeable with interest on the purchase money, if it remained in his hands unappropriated.” But this presupposes that the purchaser was not only able, ready, and willing to perform, but had actually tendered performance, for of course he would not be entitled to possession, or the duty of defendant to deliver up the possession to him would not have arisen until plaintiff performed his full part of the contract and thereby put the vendor in default.

In this case, as matter of law, the plaintiff has not been ready, able, and willing to perform, as it is admitted that he has never obtained the mortgagee’s release to this day. The principle of equity, “that specific performance is a matter, not of absolute right, but of sound discretion,” has no application here, for the purpose of showing that this plaintiff was not entitled to it, if defendant had not broken his contract. The first decree merely required the parties respectively to perform the contract, each his part of it, plaintiff’s part being to pay the $1,000 and to exonerate the defendant’s land from the mortgage lien by having the same released, and his failure to obey the order of the court is what puts him, and not defendant, in default. His right to specific performance was fully explained in the first opinion, and requires no further comment from us. Plaintiff, in his present contention, advanced for the first time, without any exception to present it, loses sight of the fundamental fact in the casé, that he has never tendered the release, and, in fact, has never been ready to do so, as it is not in his possession or under his control, and never has been, and he can take nothing from the last and erroneous decree of the court, because it is founded upon the same misconception.

*70Let tlie ease proceed hereafter in accordance with the opinion of this Court affirming the judgment rendered by Judge Allen. As their rights have now been finally determined, the parties may be able to adjust their difficulties without further litigation, as plaintiff’s counsel intimated in the argument that the necessary release could be easily secured by him.

The defendant’s motion to dismiss, as plaintiff had not complied with the former judgment, is denied. He did what the last judgment required him to do, and should not be held to have forfeited his right to a specific performance,' as already decreed, because that judgment was erroneous, nor can he profit by it in any way to the prejudice of the defendant.

Error.

AlleN, J.,

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.