{ "id": 8681672, "name": "JOHN L. KITCHEN vs. ALEXANDER HERRING & AL.", "name_abbreviation": "Kitchen v. Herring", "decision_date": "1851-06", "docket_number": "", "first_page": "190", "last_page": "193", "citations": [ { "type": "nominative", "cite": "7 Ired. Eq. 190" }, { "type": "official", "cite": "42 N.C. 190" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 Mur. 1", "category": "reporters:state", "reporter": "Mur.", "opinion_index": -1 }, { "cite": "3 Murph. 74", "category": "reporters:state", "reporter": "Mur.", "case_ids": [ 8684227 ], "opinion_index": 0, "case_paths": [ "/nc/7/0074-01" ] } ], "analysis": { "cardinality": 362, "char_count": 5525, "ocr_confidence": 0.454, "pagerank": { "raw": 3.1382549910569783e-07, "percentile": 0.8617237916187391 }, "sha256": "88f89846cf5f65790e3f1da9e9f7a76af009c2290ab25c03cb55d847c4211dab", "simhash": "1:065bfb3a954bbfc1", "word_count": 953 }, "last_updated": "2023-07-14T20:41:16.136784+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN L. KITCHEN vs. ALEXANDER HERRING & AL." ], "opinions": [ { "text": "Pearson, J.\nIn December 1846, the defendant, Herring, executed a contract in writing in these words, \u201c Rec\u2019d. of John L. Kitchen payment in full for a certain tract of land lying on the South west side of Black River, adjoining the lands of William Haffland and Martial, for which I am to give him a good deed &c.!i The defendant Pridgen wrote the contract and is a subscribing- witness. The plaintiff was put into possession in March 1847. Pridgen united with him ; and the other defendant, Musgrove, under a contract with Pridgen, with a large number of hands, commenced cutting down the timber, which constitutes the chief value of the land. Pridgen was the surety of the plaintiff to a note of $325, given payable at three months for the price of the land. In January, Herring executed a deed for the land to Pridgen, and under this title the plaintiff was turned out of possession.\nThe prayer of the Bill is for a specific performance, for an account of the profits and for an injunction. After the Bill was filed, an arrangement was made, by which Mus-grove continued his operations in getting timber, and agreed to account with the successful party. ''The/defendants, Herring and Pridgen, all\u00e9ge, that the'note was to bear interest from the date, and this clause was omitted by mistake ; and that there was an entire mistake in drawing the contract, for that the title was to be made to Pridgen, and not to the plaintiff. They further allege, that the contract was rescinded by mutual consent. These allegations are not sustained by the proof. In regard to the interest \u2014 the plaintiff at the time he tendered the amount of the note and demanded a deed, offered to pay interest for the three months, but there is not such an admission of his obligation to pay the interest, as will justify a departure from the terms of the note. The offer was obviously made to avoid litigation, to buy his peace, and there is no proof of a mistake.\nThe defendant\u2019s Counsel insisted, that the contract was void, because of its vagueness and uncertainty. This position is untenable. The description is sufficiently certain to identify the laud \u2014 \u201cthat is certain which can be made certain,\u201d and for this purpose an enquiry would be ordered if necessary. But the parties seem to have had no difficulty in this respect; for, it is admitted, that tho tract of land which was tho subject of the contract, has been eonvejred by deed to Pridgen, and in that way its identity is eslablish-ed. The description in this contract is similar to that \"constantly made by constables in levies upon land, front \u201cwhich sheriffs have no difficulty ds to what land to sell, \u2022and how to make the deeds.\nIt was further insisted, that, as it appears by the plain-* tiffs own showing, that \u201c the laud isf chiefly valuable on account of tho timber,\u201d this case does not come within the principle, on which a specific performance is decreed.\nThe position is new, and tho Counsel admitted, that there was no authority to sustain it, but he contended with earnestness, that it was so fully sustained by \u201cthe reason of the tiling,\u201d as to justify a departure from a well settled rule of this Court, under the maxim, cessante ratione ccssat lex.\nThe argument failed wholly to prove, that \u201c the reason of tho thing\u201d called for an exception, /the principle in regard to land was adopted, not because it was fertile or rich in minerals, or valuable for timber, but simply because it was land \u2014 a favorite and' favored subject in England, and every country of Anglo Saxon origin. Our constitution gives to land pre-eminence over every other species of property; and our law, whether administered in Courts of law or of equity, gives to it the same preference. Land, whether rich or poor, cannot be taken to pay debts until the persona] property is exhausted. Contracts concerning land must- be in writing. Land must be sold at the Court House, must be conveyed by deeds duly registered, and .other instances \u201c too tedious to mention.\u201d fthe principle is, that land is assumed to have a peculiar value, so as to give an equity for a specific performance, without reference' to its quality or quantity. The same is assumed as to slaves, Williams v Howard, 3 Murph. 74, while in regard to other property, less favored, a specific performance will not be decreed, unless there be peculiar circumstances ; for, if with the money, an article of the same description can be bought in market \u2014 corn, cotton, dec., the remedy at Jaw is adequate.\nThere must be adecree for the plaintiff with costs.\nPer CuRrAM. Decree accordingly.", "type": "majority", "author": "Pearson, J." } ], "attorneys": [ "W. Winslow, for the plaintiff.", "Strange, for the defendant." ], "corrections": "", "head_matter": "JOHN L. KITCHEN vs. ALEXANDER HERRING & AL.\nWhen, in a contract for the conveyance of land, the land is described as \u201c lying on the South west side of Black River, adjoining the lands of William \"Hofford and Martial.\u201d Held, that the description was sufficiently certain to entitle the bargainee to a specific performance \u00f3f the contract.\nThough it appears that the land contracted for is chiefly valuable on account of the timber, yet Equity will decree a specific performance.\nThe principle of specific performance is adopted, not because the land is fertile or rich in minerals, or valuable for timber, but because it island \u2014 a favorite and favored subject in England, and in every country of Anglo-Saxon origin.\nThe case of Williams v. Howard, 3 Mur. 1, cited and approved.\nCause transmitted to the Supreme Court from the Court of Equity of New Hanover County, qt the Spring Term 1850.\nW. Winslow, for the plaintiff.\nStrange, for the defendant." }, "file_name": "0190-01", "first_page_order": 200, "last_page_order": 203 }