Long v. . Freeman , 114 N.C. 567 ( 1894 )

In 1879 the defendant and others agreed with plaintiffs to pay them one-sixth part of all the produce raised upon the lands "conveyed" by plaintiffs to said defendant and others in P. N. Long's last will and testament. The agreement proceeds further: (570) "Any lands conveyed or which may be conveyed by them (the plaintiffs), the rents to be paid of said lands." Though very inartificially drawn there is no difficulty in reaching the true construction of this instrument — that, if the plaintiff's lands should be conveyed by deed to the parties thereto during the life of P. N. Long and wife, instead of being devised to them by will, the grantees should continue to pay to the grantors one-sixth of the produce raised thereon as rents.

We are of the opinion that there is no estoppel upon plaintiffs to claim the said one-sixth by reason of the acknowledgment of receipt of the purchase-price named in the deed. If the provision for its payment had been expressed in the deed it would have been good. This agreement, however, was made long before the execution of the deed, and with express reference to that contingency, as if to avoid the contrary presumption which would have arisen upon the deed but for this provision. No rights have accrued to purchasers. The controversy is entirely between the parties to the original contract. There is nothing to hinder them from recovering upon the contract to pay rent in case there should be a conveyance. Lane v.Wingate, 25 N.C. 327. The plaintiffs do not dispute their own solemn deed, but allege another and independent contract. Sherrill v. Hagan,92 N.C. 345.

No error.

(571)