Law School Case Brief
Kitchen v. Herring - 42 N.C. 190 (1851)
The principle of specific performance in regard to land was adopted, not because the land was fertile or rich in minerals, or valuable for timber, but simply because it was land. Land, whether rich or poor, cannot be taken to pay debts until the personal property is exhausted. Contracts concerning land must be in writing. Land must be sold at the courthouse, must be conveyed by deeds duly registered, and other instances "too tedious to mention." The principle is that land is assumed to have a peculiar value, so as to give equity for a specific performance, without reference to its quality or quantity.
Defendant seller executed a contract wherein he indicated receipt from plaintiff purchaser payment in full for a certain tract of land but they argued that the note was to bear interest and that the entire contract was a mistake because the title was to be made to defendant surety. Plaintiff purchaser filed an action against defendant seller and defendant surety for specific performance to convey a certain tract of land, for an account of profits, and for an injunction to restrain the surety from removing any timber from the land.
Can the plaintiff purchaser enforce the specific performance to convey a tract of land?
The court held that those allegations were not sustained by the proof. The court found that the note did not contain an interest provision and there was no admission by the purchaser that would have justified a departure from the terms of the note. The court rejected the seller and surety's argument that the land was valuable because of its timber and did not come within the principle of specific performance. The court held that the principle was adopted, not because the land was fertile or rich in minerals or for valuable timber, but simply because it was land.
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