E. G. READE* and G. W. NORWOOD v. CHESLEY HAMLIN.

Where a suitor in the Court of Equity for Person county made up his mind to appeal from an order, before Thursday of the term, and was prevented from doing so by the previous departure of the Judge; Held, that it was a proper case for a certiorari.

An order for the specific performance of an executory contract for sale of land, when applied for by the vendor, includes: a reference for an account to fix the balance due for principal and interest of purchase money, and a decree for a sale of the land to pay such balance, unless at a day certain the vendee pays into court the said amount, and will accept the deed of the vendor, or make objection to his title and ask for a reference as to that.

Where, in a suit for specific performance brought by a vendor of land, it appeared that the property was being suffered by the vendee, who was in possession, to go to waste, and had thus already become an insufficient security for the price outstanding, and the bargainor had made reasonable propositions for a rescission of the contract, and an arbitration of differences; Held, that it was proper to appoint a receiver of the property.

Bill, filed to Fall Term, 1866, of the Court of Equity for Person.

The complainants alleged that in the year 1861 they had .sold certain mills and other real estate to the defendant, taking from him a bond for the price, and reserving the title ns secui’ity; that defendant had been in possession ever •since, making considerable profits out of the mills, but allowing the houses to become out of repair, and the machinery worn out and broken; that defendant was insolvent, and threatened to let the mills go to ruin, and not to pay for them out of any other property of his; that the property was already deteriorated so as not to be worth the debt; that complainants had offered to take back the property, surrendering tire bond for the price and leaving to arbitration any questions of rent, &c.; or to lose one-half of the accumu*129lated interest, if payment should be made; all of which the defendant declined. The prayer was for specific performance, an injunction against removal of machinery, a receiver, and further relief.

Upon this an order was made by Judge Battle, at Chambers, for an injunction and a receiver.

At Fall Term the defendant put in an answer, admitting the bargain and the debt, but denying insolvency/ or that the mills were being allowed to go to ruin, and making statements of claims and grounds of complaint against the bargainors.

Affidavits were filed for both parties.

Upon a motion to dissolve the injunction and to remove the receiver, his Honor, Fowle, J, granted the same, requiring, however, that the defendant should enter into bond with personal security, conditioned that he should abstain from waste, and should indemnify the complainants against waste by him, (wear and tear, and accidents by high water, excepted,) and that he should make necessary repairs.

The application for a certiorari, by the complainants, showed that tints order was made upon Wednesday of the term, and that his Honor, having good reason for supposing that all business had been done, left the court shortly after, without the knowledge of the complainant who was attending more particularly to the case; that the latter upon consideration concluded, within some short time after the order was made, to appeal, but upon going to the Court House for that purpose found that the Judge had gone early in the afternoon of Wednesday.

Phillips & Battle, for the complainants.

The general rule is admitted to be that he who has the legal title cannot have a receiver, as he can take possession. But to this is the exception, which applies here, that if the *130rents and profits be shown to be needed for the relief of the complainant, a receiver may be had. Adams’ Eq., 352-4; Dan. Ch. Pr., 3d, 1961, &o.; Mordaunt v. Hooper, Amb., 311; Boehm v. Wood, 2 Jac. & W., 236. That a vendor in North Carolina, situated as those here, may look to rents as part of his indemnity, see Code, c. 63, s. 2.

Graham, and Venable, for the defendant.

Pearson, C. J.

The motion to dismiss a certiorari is not allowed when an opportunity to appeal is lost by accident or unavoidable cause, and without laches. The writ of certiorari is usual to bring the case up, and after being put on the trial docket it is, to all purposes, as if there had been an appeal. In this case no laches can be imputed to the complainants. The law considers the term of the court in the county of Person as continuing until 4 o’clock on Thursday, and suitors have up to that time to decide whether they will appeal or not. So if the complainants had said on Wednesday that they were satisfied with the arrangement in respect to the bond against waste, they had a right, on second thought, to change their minds, and avail themselves of the right of appeal freely given by our law to any party who is dissatisfied and is able to secure the costs. Suitors, therefore, cannot lose this right by the accident, that the Judge took his departure on the day before, provided the intention to appeal was formed before the expiration of the term contemplated by law. There is no doubt as to the facts, and it would seem to be captious to rule the parties down and require them to come to a conclusion on the instant in reference to appealing, as the intention to appeal was made known in so short a time, and no inconvenience ought to have resulted from a day’s delay.

Upon the merits, my brother Battle and I are fully satis*131fled that the sequestration and appointment of a receiver should be continued until the hearing.

In contracts for the sale of land it is usual for vendors, besides retaining the title as security for the purchase money, also to require a note, with sureties, as additional security, at least for a part of the price, and the vendee is let into possession and the pernancy of the rents and profits, subject to the right of the vendor, if installments are not promptly met, to take back the possession, and receive the rents and profits to meet accruing interest. The vendor may sue at law, take judgment on the note of the vendee, exhaust him and his sureties, and then apply to a Court of Equity for a specific performance of the contract in this form, i. e., a reference for an account to fix the balance due for principal and interest of purchase money, and a decree for a sale of the land to pay such balance, unless at a day certain the vendee pays into court the said amount aud will accept the deed of the vendor, or make objection to his title and ask for a reference.

In our case, the vendors were content with the title as security, and let the vendee into possession without requiring personal sureties as to any part of the purchase money. After the expiration of several years beyond the time when the mills and land ought to have been paid for, the vendors, finding, as they allege, that the mills were getting out of repair and becoming subject to waste, and fearing that they would never get their pay, and would have to take the land back, made'this proposition to the vendee: “Pay the purchase money and accept title, or else give up our bond for title and accept your notes, so as to cancel the contract .subject to arbitration as to yhat you ought to pay either for interest or for mesne profits during the time you have had the use and benefit of our mills and land.” To these propositions, which seem to us to be reasonable, the defendant .declines to accede, and, on the contrary, insists upon keep*132ing in his hands both the land and the price of it, without securing rents or interest, upon the ground that he has as much right to avail himself of the usiay law ” as those who are indebted to him!

Without intending to intimate an opinion how far any man can honestly avail himself of the stay law to avoid doing that which for a valuable consideration he undertakes to do, we are confident in the opinion that the case under consideration stands on ground differing from that of one where the land has been conveyed, the vendor choosing to rely on the naked personal obligation of the vendee, as in Miller v Miller, ante, p. 85; for here the land belongs to the complainants until the price is paid, and it is against conscience for the vendee to keep both the land and the price, and not secure the payment of rent or interest. We find, from the cases cited on the argument, that although a vendee let into possession is not accountable for rents and profits as a general rule, yet, under special circumstances importing insolvency and waste, the court will appoint a receiver, so as to secure something for the vendor. Wc have a strong legislative enactment on this subject, see Code. ch. 63, sec. 2. “And it is hereby declared that any one let into possession, under a contract of purchase which fails, is within the meaning and provision of this section, and shall be liable for his use and occupation. Our decision is mainly put on the doctrine set out in Adams’ Equity, which we find to be fully supported by the cases cited. The court will not allow a vendee to keep the land and the price too, but will put him under a rule to pay the purchase money into court. The defendant admits his total inability to comply with a rule to this effect, so the rule appointing a receiver is much the milder course, and is the only one that could be adopted, unless the defendant is to be allowed to have the use of the complainants’ mills and land for nothing, and without paying the price agreed on, until such time as the cause may *133be brought on for hearing according to the course of the court, which would be to allow him to take advantage of his own wrong.

Per Curiam.

Decretal order reversed, and ordered that the sequestration and receiver be continued until the hearing.