#### HENRY WELLS vs. ROBERT P. WELLS.

A, agreed with B., that, in consideration of a certain sum, he would convey B. a .certain tract of land, and the purchase money was secured by notes payable in three years. It was further agreed, that B. should take possession of the premises, and should pay, annually, for three years, a certain portion of the crop; and if B. paid for the land by such annual instalments, in three years, the deed in iee was to be given; if not, the ann ual payment tyas to be considered as rent, aitd at the end of the three years, the land was to be surrendered by B. Held, that if the annual payments amounted at the ¡expiration of four years to the price originally agreed-to be given for the land, the bargainee claiming that they should be so applied, although the bargainor insisted that the payments should be considered only as payments of rent, the bargainee was entitled to a conveyance of the premises.

The lime mentioned in thp contract lor completing the purchase of land, is not usually considered ijt a Court of Equity, as of the essence of the coutract.

Cause removed from the Court of Equity of Buncombe County, by consent of the parties, at the Pall Term, 1844.

The following facts were disclosed 'by the pleadings and proofs.

On the 10th day of November, in the year 1836, the defendant, for the consideration of $300, executed in writing, under his hand and seal, an agreement with the plaintiff, to make hjm a good title in fee to a tract of land of one hundred acres, more or less, it being the land which the defendant purchased of David Roberts, lying in Buncombe county, on the waters of flaw Branch. The purchase money was secured by notes of hand, payable in instalments in three years from the date of the agreement. It was, at the same time, by a separate instrument, further agreed by and between the parties, that Henry Wells was then to be let into possession, and to hold the place for three years, by paying 125 bushels of corn per ann.um as rent; “ but that the said 125 bushels of corn per annum is ¡to go to pay for the place at cash prices, if the,said Henry Wells pays for the place in three years ; if not, the an*597nual payment of t'he corn is to be the rent, and the said Henry Wells is to give up the possession of the place to Robert P. Wells, with all improvements, &c.” The plaintiff in his bill states, that he has paid to the defendant and his assignees of the said notes, the principal money and interest; that the entire payment was completed in the year 1840 ; that he then called for a legal conveyance of the said land from the defendant, which he refused to execute. The prayer of the bill is for a specific execution of the said contract.

The defendant in his answer, admits the written contract of purchase or lease as stated in the bill. And he further says, that the plaintiff failed to pay the notes within the three years; that, on the 11th day of November, 1S39, it was further agreed between them, that the payments which had been made should go as rent, and not as payments on the notes; and that it was then further agreed on, if the plaintiff would go on and pay off the said notes, independent of the rent already paid, that the' defendant would let him have the land, and execute a deed for the same, but he says that the consideration was intended to be $350, and $300 was by mistake inserted in the written agreement. There is a replication to the answer.

Badger for the plaintiff.

Francis for the defendant.

Daniel, J.

There is no proof in the case of any mistake having been committed, in inserting in the agreement $300, as the consideration for the land. There is proof that the defendant, on the *llth day of November, 1839, demanded a surrender of the possession of the land, on the ground that all the purchase money had not been paid within the time stipulated. To which demand, the plaintiff refused to yield, and said he did not want to give it up, he had done too much work ,on it, that he would keep the place and pay for it. He th§n said, that he would' let what he had paid go as rent, ac_ cording to the written articles. All the advancements in mo*598ney, stock, and corn, which the plaintiff had made for three years, die defendant insisted to retain as rent, and also to force the plaintiff to pay beside in lull the notes and interest, which had been originally given for the purchase of the land. This unreasonable demand was made on the very next day alter the time for full payment had expired. It is plain from the terms of the original written contract, that the plaintiff intended to hold on upon the land, as a home, if he could by any means pay for it, and if he found out that it would be impossible for him to raise the purchase money, that he should then have the liberty of being considered as a tenant for three years, at fhe rent of 125 bushels of corn per annum. Tho plaintiff, op •the 11th day of November, 1839, refused to abandon his contract of purchase. The parol agreement, extorted that day from him, was unreasonable and without any consideration in this court; for the time mentioned in the contract for completing the payment of the purchase money is generally not, in this ciurt, of the cssense of the contract. Indeed, the defendant was, himself, not in a condition to rescind the contract of purchase or declare it at an end, as he did, upon the ground of its not having been literally performed by the plaintiff in making payment to the very day. For, before that time, the defendant had assigned one of the bonds for $ 100 to anothet person, who took it without recourse to the defendant, and on the sole credit of the plaintiff, who duly paid tf. After having thus virtually received one-third of the purchase money, over and above the sums which he now claims to keep as rent, (which of themselves amount to nearly one-half of the purchase money) the defendant cannot be permitted, in this court, to insist on the forfeiture of either of his payments or the land by the plaintiff, when the latter has since paid, or is willing to' pay, the whole purchase money agreed op, and the interest accrued thereon.

It therefore seems to us, that the plaintiff is entitled to a decree for a specific execution of the contract, if he has paid the purchase money as stated by him in his bill, or if he shall now pay what may be found duo by a report of the ¡Master.

*599Weare of opinion that a reference must be made to asceí- June, 1845 thin whether the consideration money has been paid, and if hot, what sum remains unpaid.

Per Curiam, Decree accordingly;