#### W. L. WHITE v. ANN JONES et als.

Petition to Rehear— Vendor'’s Lien — Specific Performance.

1. A petition to rehear should point out the ruling which is alleged to he erroneous, but should not, by a course oí reasoning, undertake to show .that it is erroneous. The argument should be made at the hearing, andnot in the petition to rehear.

2. The doctrine o£ the vendor’s lien for unpaid purchase money, has long been repudiated in this State.

3. A court of equity will not decree the specific performance oí a contract to convey land, until the lull price has been paid; but this does not rest on the doctrine of lien, but upon the rule that a court of equity will refuse relief to one who will not do what, in equity, he ought to do,

4. The rule announced in the former decision of this case affirmed, that where A purchased land, and after paying a part of the purchase money, assigned his interest to.B, taking from him a promise to pay the balance due to the vendor and his bond for the part A had paid, and B afterwards assigns his interest to the plaintiff; the plaintiff, upon paying the balance due the estate, will be entitled to a deed for the land, unencumbered with any lien in favor of B.

(Womble v. Battle, 3 Ired. Eq., 182; Cameron v. Mason, 7 Ired. Eq., 180; Blevins v. Barker, 75 N. C., 436; Smith v. Brittain, 3 Ired. Eq., 347; Lewis v. Rountree, 81 N. C., 20, cited and approved).

Petition by the defendants to rehear. The case is reported in 88 N. C., 166.

Messrs. R. F. Armfield and Batchelor & Levereux, for the plaintiffs.

. Messrs. D. M. Furches, L. O. Fowle, Fuller & Snow, F. O. Smith and J. M. McCorlde, for the defendants.

SMITH, C. J.

The petition of the defendant Jesse Bledsoe, asking us to review and reverse our former decision in the cause, for an assigned error prejudicial to his claims, is not confined tó its proper office of pointing out the ruling wherein the error lies, but undertakes, by a course of reasoning, to show the ruling to be erroneous. The proper time to make the argument is at the *389bearing, ancl we notice the departure from the simple and brief forms in use, to avoid the inference that this meets our approval, and that it may not become a precedent.

The brief, filed in support of the application, introduces the doctrine, long since repudiated in this State, which gives to the vendor of real estate, after conveyance to the vendee, a lien for the unpaid purchase money, of which we have only to say it can furnish no aid by analogy or otherwise, in the present case. Womble v. Battle, 3 Ired. Eq., 182; Cameron v. Mason, 7 Ired. Eq., 180; Blevins v. Barker, 75 N. C., 436.

In the former opinion, formed after much consideration of the whole subject matter involved in the appeal, occurs a sentence upon which stress is laid in the argument for the petition, expressed in these words:

“Were Gray, the plaintiff in the action, tendering the balance of the purchase money to the administrator and seeking to have title assured to him, then the court might well, and doubtless would, withhold its aid until he had as well paid the debt to his immediate assignor — and this independently of any contract, and upon the principle that he who would have equity must first do equity.” White v. Jones, 88 N. C., 166 and page 179.

If this language were susceptible of an interpretation that ■recognizes the creation of a lien upon the equitable estate vesting in Gray, by virtue of the transfer of the bid of Bledsoe and Maxwell to him, which the assignee would be compelled to discharge, as well as to pay the remaining purchase money due to the administrator, before he could entitle himself to a decree for a conveyance of the legal title, it would be difficult to resist the reasoning, and the sustaining authorities cited, that the lien is transmitted, with the successive assignments of the estate to which it adheres, until its termination and vesting in the plaintiff. But the defect in the argument is in the false premises assumed, that such lien was formed at all between the original parties to the transfer of the bid, so as to attach to the estate in Gray, or that the passage quoted was intended to bear, or by any *390fair and just interpretation will admit of such meaning. The suggestion is outside of auy supposed lieu, and rests upon a different principle prevailing in the administration of remedial justice in a court of equity, which, in applications for specific performance, that are not of strict right, guides the action of the court in refusing relief to one who can, and will not do, what in equity he ought to do to another. As Gray owes equally the money advanced by his assignors, as that still due the vendor, and has become incapacitated by subsequent insolvency from paying to them that part of the consideration of the assignment., the intimation is that relief in obtaining title will be granted only when the full consideration of the original contract of purchase has been paid and discharged. This is the extent of the proposition, and whether pertinent to the facts of the present case, it does not countenance the assumption that while such an equity subsisted in favor of the assignors against Gray himself, it ceased upon the assignment, of Gray and could not be further pursued.

To a proper understanding of the matter it becomes necessary to recall the material facts. Summarily, they are these:

Jacob Fraley, in the exercise of a power conferred in the will of Rachel Stokes, on January 1st, 1863, made sale of the land known by the name of “The Old Stokes Homestead,” on a credit of 12 months, to Bledsoe and Maxwell, the highest bidders, for the sum of $26,180, whereof in twenty days thereafter they paid the administrator, in Confederate money, $15,210, which sum, with interest, was equivalent at the expiration of the credit, to $16,180, then paid. On March 6th Bledsoe and Maxwell endorsed their bid for the land, and some articles of personal property bought at the same sale, at an advance of $2,000 to Gray, at the same time taking from him a bond, that is dated, however, on the day previous, wherein he promises'to pay them $16,108, expressed to be “in payment of the Stokes land, the remaining part to be paid to the administrator of the deceased, for all the balance due from us (them) to the estate.”

*391On the 18th day of the next month, Gray offered to take up his bond with Confederate Currency of which the assignor consented to accept $10,680 and no more. Thereupon, in the place of the first bond, Gray executed another in the sum of $7,500 : maturing in forty-five mouths, and bearing interest during the first twenty-one months at the rate of two per cent-, and at the rate of six per cent, for the remainder of the time. A bond similar in terms and credit and for the same amount, had been before given by Bledsoe and Maxwell to one Edwards for money borrowed of him and used by them in making the early payment to the administrator, and the bond of Gray was put in a form that the one debt could be used in discharging the other. According to the testimony, Gray ivas to take up the claim held by Edwards and surrender it to the assignor in discharge of his own debt.

We give our unqualified assent to what is said of the nature and effect of these transactions in the former opinion.

“So that it is clear to be seen,” remarks the court, “that the intention and expectation of the parties w?ere, that upon his paying to the estate the unpaid portion of the purchase money, Gray was to receive the title to the land, unencumbered with aivy liens in favor of Ms immediate vendors. Their assignment to him was an absolute and unconditioned one therefore, so far as it depended upon the intention of the parties and their contract; and in the same plight and condition he had a right to assign it and did assign it; and, in that condition, it was acquired by the plaintiff. We know of no principle of equity upon which, under such circumstances, he should be deprived of the full benefit of his acquisition;” sameKoport, p. 178. ■

No such lien is contemplated, and no such incumbrance imposed, in the terms of the agreement, nor is either implied in the attending facts. The transfer is simple and direct, placing Gray in the precise position occupied by his assignors in respect to their accepted bid, and as they could, so could he demand a conveyance as soon as the residue of the debt due to the vendor was discharged. This is the only condition underlying the vendor’s obligation to make title.

*392The undertaking of Gray to reimburse to his assignors the moneys previously paid by them upon the purchase, is purely persona], and distinct from the equitable estate passing to him, and this is accepted by them as a sufficient security for the performance of it. As evidence of the complete association of the obligation assumed, the substituted bond of April defers payment for more than three years beyond the period of credit fixed in the administrator’s sale, so that when the administrator could demand and enforce payment of what was due him, Gray would be in no default in respect to his contract for which he could be held liable. How, then, can the discharge of a debt that he has yet three years in which to pay, enter into and become a condition precedent to his right to require the title, and how can the obligation, as an incumbrance, be fastened upon and follow the estate when conveyed ?

We are unable to distinguish the present case favorably from that of Smith v. Brittain, 3 Ired. Eq., 347, cited in the former opinion, and discussed in the brief of petitioner’s counsel, the facts in which are briefly these:

Brittain bid off the land under a decree of the court of equity in a suit for partition at the price of $5,656, whereof he paid part, and being pressed for the residue, agreed to sell his interest in the land to Smith for $3,800. This sum was paid to Brittain, and with it, and other money of his own, Brittain discharged the debt incurred in the purchase. It was afterwards discovered that the tenants had not and were unable to secure a good title to the property, and the inquiry was, to whom should the purchase money be returned. Brittain claimed all in excess of the sum advanced by Smith, and the latter claimed all, under the assignment. It was decided, that as, if the sale had been consummated, Smith would have taken the land, so, upon a rescission, he was entitled to all the money, as representing the land.

The common principle in all the cases is, that the assignor becomes subrogated to all the rights of the original bidder, and may enforce them against the vendor, as well in coercing a con-*393veyanee of the land, as in a return of the purchase money representing it, when the other is impracticable, and this without regard to the source from which the purchase money may have been derived. It is true one of .the Court dissents, but this does not weaken the clear and conclusive logic of the opinion, nor impair the force of the adjudication as a precedent.

The testimony of the petitioner, that the payment of the last-bond of Gray was put in the distant future to meet a bond similar in terms, given by himself and Maxwell, even if the first agreement was, as he says, that Gray was to repay them, as well as pay what was still due the administrator, before getting the legal title, it must be regarded as a superseding arrangement, since it is entirely inconsistent with the other previously made, and to neither was the administrator a party.

Aside then from the difficulty met in the rule of evidence, which does not allow parol addition to the terms of a written contract, and their legal operation, under the statute of frauds, it must be manifest that all such difficulties disappear in the final form which the transaction assumes.

If it were necessary in order to obtain title, to bring Bledsoe and Maxwell before the court and require of them something to be done to complete the assurance, they would not be compelled to act in perfecting the title to an insolvent purchaser, who still owed and could not pay the portion of the purchase money due to them. But this is not necessary; the transfer puts Gray in the same relation to the vendor as' his assignors, and separates them from it, so that he is permitted to demand of the vendor the execution of the contract, as soon as full payment is made to him. This is the result of the transfer, by the voluntary action of the parties to it.

Therefore the relation of these parties are only those of creditor and debtor, and no more equity remains in the former than in the case of the vendor, who has conveyed the land and taken only the personal obligation of the debtor for the unpaid purchase money. Blevins v. Barker, ante.

*394We have carefully reconsidered oiir former ruling with the purpose of discovering and correcting any error that may have been committed in the former adjudication, yet we cannot forbear recurring to the principle upon which a rehearing is had, as announced in Lewis v. Rountree, 81 N. C., 20, and numerous cases preceding, within which this case can scarcely be included. No new authorities have been cited and no matter, then overlooked, called to our attention to unsettle our then expressed convictions of the law so as to disturb the conclusions arrived at.

The judgment must be affirmed.

No error. Affirmed.