{
  "id": 8685683,
  "name": "JOHN J. PACK and others v. THOMAS H. GAITHER",
  "name_abbreviation": "Pack v. Gaither",
  "decision_date": "1875-06",
  "docket_number": "",
  "first_page": "95",
  "last_page": "98",
  "citations": [
    {
      "type": "official",
      "cite": "73 N.C. 95"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 317,
    "char_count": 4868,
    "ocr_confidence": 0.402,
    "pagerank": {
      "raw": 7.474140541606369e-08,
      "percentile": 0.4452742225511989
    },
    "sha256": "c001198edf6eb988be55003321ff1a6fe999257265d0cda57c18821d0ca1f999",
    "simhash": "1:2895fc2997099eee",
    "word_count": 861
  },
  "last_updated": "2023-07-14T17:55:27.517682+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN J. PACK and others v. THOMAS H. GAITHER."
    ],
    "opinions": [
      {
        "text": "Settc,b, J.\nA specific performance of the contract cannot be decreed in this case, because it is not practicable.\nIt is true, the plaintiffs have complied with their part of the contract, but the defendant never had, either at the time of executing the said contract or since, a deed for the land, the conveyance of which is now sought to be enforced. He had bid it off .at a Clerk and Master\u2019s sale, prior to the rebellion, and had given his note, with security, for the purchase money, but the sale (the defendant and his surety having both become insolvent.) was set aside, and a second sale was ordered by the Court, when another party became the purchaser. The defendant is a discharged bankrupt, and was such at the commencement of this action.\nHow is it possible for him to comply with his contract ? It is certain that he has not the land, and it is almost certain that he has not the means with which to purchase it.\nThe Court will not decree either a vain or an impossible act to be performed.\nAdams, at page 81, says: \u201cIf the defendant cannot fulfill the contract which he has made, it may be ground for exempting the plaintiff from costs on the dismissal of his bill, but it cannot authorize the Court to decree an impossibility. Such, for example, is the case where the vendor of property has no estate, or only a limited estate therein; where he holds it as a trustee without authority to sell; or where, bemg the absolute owner at the time of his contract, he subsequently conveys to a stranger who is ignorant of the prior sale, and is therefore bound by no equity to give it effect.\n\u201c In this la\u2019st case, the vendor\u2019s misconduct may be a ground for charging him with costs, but a decree for performance of the contract is obviously impossible,\u201d &e.\nIf the defendant either had title to the land, or could procure it by any reasonable means, the plaintiffs would undoubtedly be entitled to have a specific performance of the contract; but to make such a decree in this case, would simply amount to the perpetual imprisonment of the defendant, without accomplishing the object sought to be obtained.\nThe judgment of the Superior Court is affirmed.\nPeb CnRiAM.\nJudgment affirmed.",
        "type": "majority",
        "author": "Settc,b, J. Peb CnRiAM."
      }
    ],
    "attorneys": [
      "W. 11. Bailey, for the appellants.",
      "Graige <& Graige, contra."
    ],
    "corrections": "",
    "head_matter": "JOHN J. PACK and others v. THOMAS H. GAITHER.\nA specific performance of a contract will not be decreed where it appears that such performance is obviously impossible.\nCase agreed, tried before OlouA, J., at Spring Term, 1875, Davie Superior Court.\nThe following are the facts agreed :\nThis is an action for the specific performance of a contract to convey real estate.\nThe following is the contract:\nNorth Carouina, 1 J J 4th.1863. Davie County. j J ,\nKnow all men by these presents, that I, T. H. Gaither, am held and firmly bound by these presents, doth bind myself, executors or administrators in the sum of ten thousand dollars to John Pack and others.\nThe condition of the above obligation is such that, whereas the said T. H. Gaither hath this day bargained, sold and delivered all except what is in cultivation unto John J, Pack, B. N. Allen, Conrad Hendrix and Jacob Oormatzer, about ninety acres of land, more or less, it being a part of the Calmer tract, lying on Crouse\u2019s creek, and taking their note ninety days after date, payable to I. G. Lash for five thousand dollars with approved security, Now, whenever the said I. G. Lash will receive said note, then the said T. II. Gaither will make, or cause to be made, a good and lawful title for said land. Then the' above obligation to be void and of no effect, otherwise to remain in full force and effect. Signed, sealed and delivered in the presence of\nJ. R. Williams. T. II. GAITHER.\nAt the time of the execution of the above contract, the defendant had no deed for the premises, but had purchased the same at a Clerk and Master\u2019s sale prior to the late war, and had given his note with surety for the purchase money.\nThe defendant and his surety having become insolvent, the sale was set aside and a new sale ordered, at which another party became the purchaser.\nThe plaintiff executed the note to I. G. Lash, which was accepted in lieu of the note of defendant, and that the note of defendant was surrendered to him.\nSince the war, a judgment was taken on the note executed to Lash, which was compromised on the payment of four hundred and twenty-five .dollars.\nThe defendant had received his certificate as a discharged bankrupt before the commencement of this action. The plaintiff made demand before suit.\nIf upon the foregoing facts the Court shall be of opinion with the plaintiffs, a judgment for specific performance is to be entered, otherwise judgment for the defendant.\nHis Honor being of opinion that the plaintiffs were not entitled to the relief demanded, gave judgment for the defendants. From this judgment the plaintiffs appealed.\nW. 11. Bailey, for the appellants.\nGraige <& Graige, contra."
  },
  "file_name": "0095-01",
  "first_page_order": 103,
  "last_page_order": 106
}