Gilkerson v. Connor

Citations

• 24 S.C. 321
• 1886 S.C. LEXIS 41

Syllabus

<p>M. contracted to purchase a lot of land from C. and made sundry payments,, leaving a balance due. M., being indebted to G., gave to him the following paper: “Mr. C., you will please see that G. is paid for all my indebtedness to him for * *, before you make titles to me for the land and lot purchased of you.” G. brought an action alleging these facts, and stating that nothing had been paid him, and he demanded judgment for the amount due him, and if not paid that the land be sold and the proceeds applied to the costs, then to the payment of the balance due C., and then to plaintiff’s claim. The defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The Circuit Judge overruled the demurrer, and M. appealed. Held:</p> <p>1. That the order must be sustained as to C., as he did not appeal.</p> <p>2. That the complaint stated a cause of action against M., in that it alleged a debt due by him and demanded judgment therefor.</p> <p>3. That the equitable interest of M. in this land might be mortgaged, but that this paper was not a mortgage, but a simple order on C. to pay G. a certain debt. As C. never accepted the order and had no funds in hand, he was not liable.</p> <p>4. The plaintiff is not entitled to specific performance, as the paper he holds does not assign him, either legally or equitably, the interest of M. in the original contract.</p>