
    WILEY JONES vs. BENJAMIN F. HAWKINS & AL.
    When a bill does not charge the facts to be within the knowledge of the defendant, he is permitted to answer as to hie information and belief, and such an answer is always deemed sufficiently responsive to the bill.
    Note. — Owing to the indisposition of the Reporter, these cases were not reported at the proper time.
    Appeal from an interlocutory order of the Court of Equity of Buncombe County, at the Fall Term 1847, his Honor Judge Battle presiding.
    
      In the year 1839, the plaintiff purchased from Joseph W. Hawkins a tract of land, belonging to him and to his brother Benjamin P. Hawkins, for whom he acted as an agent, at the price of $5000. Of this sum, $2000 were paid at the time, and the plaintiff, to secure the sum remaining due, executed three several bonds, each for $1000, and payable respectively on the 13 th of March 1841, 1842 and 1843, and each bearing date the 27th of September 1889. On the same day, and bearing even date with these bonds, Joseph W. Hawkins executed and delivered to the plaintiff his obligation under his hand and seal, in the penal sum of $10,000, to make to him, on or before the 13th day of March 1843, a good and sufficient conveyance of the said land, with general warranties. Joseph W. Hawkinsdied in the year-, and the defendant, John Hawkins, was duly appointed his adminis'rator. The plaintiff alleges, that, at the time he made his contract, it was expressly agreed between him and the intestate, Joseph W. Hawkins, that he should not be pressed for the money, until the conveyance of title was made, both for his share offihe land and his brother Benjamin’s, who lived in another State, and that, in violation of the contract, an action was commenced against him in 1845 upon one of the bonds, by the defendant John Hawkins, and a final judgment obtained at August term 1847 of the Supreme Court against him ; and that, at the same term, another judgment was obtained against him upon another of the bonds, in the name of Benjamin F. Hawkins, to whom it had been assigned. He alleges, that he always has been ready, and still is, to comply with his part of the contract, upon receiving a good and sufficient title from the defendant. John Hawkins, of the interest of his intestate in the said lands, the said Benjamin having conveyed his interest to him, but that the said John Hawkins, administrator of Joseph W. Hawkins, has refused to convey the interest of the said Joteph in the said land. The plaintiff further alleges, that the #2000, paid by him at the time of making the contract, were for the interest of Benjamin F. Hawkins in the traet of land. The bilí prays a specific performance of the contract, and an injunction to restrain the collection of the money recovered, until a good and sufficient title is made.
    The defendant, John Hawkins, administrator of Joseph W. Hawkins, alleges, that he. knows nothing of the contract personally, but, from what he has heard, both from the intestate and the plaintiff, he does not believe, that it was a part of the contract, at the time it was made, or was ever since so agreed between his intestate and the plaintiff, that the latter was not to he pressed for the purchase money, until titles were executed for the land ; but, on the contrary, he believes that the purchase money was to be paid before the conveyances were executed ; and states, as his reason for tbe belief, that the bond, given for the title, requires the title to be made, at the same time the last bond for the purchase money falls due. He further alleges, that the plaintiff, in conversations with him, stated, that the title to the land was to be made, when the money was paid, and that he never claimed the contrary to be tbe fact. He denies that tbe plaintiff ever demanded or requested a conveyance. On the contrary, he offered to make a conveyance at any time, when the plaintiff told him he did not wish the title made, until the money was paid. He denies that the $2000 paid were for the interest of the defendant, Benjamin F. Hawkins, as the share of the latter in the land was much more valuable than the intestate’s, and alleges that it was paid for their joint interest and was accordingly shared between them, and that two of the bonds were assigned to Benjamin and one retained by Joseph W. Hawkins, which is the one upon which the judgment is recovered. The answer of Benjamin F, Hawkins is the same in every material part with that of John Hawkins.
    
      On motion in the Court below, the injunction, which had been granted, was dissolved, and the plaintiff appealed.
    
      J. W. Woodfin, for the plaintiff.
    
      N. W. Woodfin, for the defendants.
   Nash J.

The claim of the plaintiff to the relief he seeks rests upon the allegation, that, at the time he made the contract, it was expressly agreed between him and Joseph W. Hawkins, that he was not to be pressed for that portion of the purchase money, for which he has given his bond, until a good and sufficient conveyance of the whole of the land was made to him ; and that, in violation of this agreement, the judgment was recovered, before any deed was executed and tendered by the defendants. This allegation is denied by both the answers, as fully and positively as, from the situation of the defendants, it was in their power to make it. The bill states that Benjamin F. Hawkins, one of the defendants, was not present, but was, at that time, residing in another State, and Joseph W. Hawkins, with whom the contract was made, is dead. So that neither of the defendants could possibly know any thing of the alleged agreement, except by relation. The bill, therefore, does not charge the facts to be within the knowledge of either of the defendants. If it had so done, the defendants would have had to answer positively and not as to their belief. But the rules of chancery practice do not require of a defendant that, which in the nature of things he cannot do. - When the charge is, as here, of facts, of which he has no personal knowledge, he is permitted to answer as to his information and belief, and such an answer is always deemed sufficiently responsive to the bill. This has been done by those defendants. Nor are the facts, alleged in the plaintiff’s bill, such as sustain his charge. The three bonds, given by him for the deferred payments, and the bond given by Joseph W. Hawkins to make title, all bear the same date, to-wit: the 27th of September 1839. The last bond is payable on the 13th of March 1842, and on the same day Joseph W. Hawkins binds himself to make title. Each of the contracts or covenants is independent — upon their face there is no condition whatever. It may well be asked, if such an agreement, as that charged in the bill, had been made by the parties, why it was not inserted in the written evidence.

In addition, it is alleged in the bill, that the two thous- and dollars paid at the time of the contract, were for the interest of Benjamin F. Hawkins in the land, and the plaintiff admits, that he has received a good and sufficient title from Benjamin for his share of his land. The answers both deny, that the money paid was for Benjamin’s interest, but aver that it was received to their joint interest and divided equally between them, and that Benjamin’s interest was valued at three thousand dollars and Joseph’s at two thousand; and, in accordance therewith, two of the bonds were assigned to Benjamin and one retained by Joseph, which, with one thousand each had received in money, made up their respective shares of the purchase money. The plaintiff then has actually received a conveyance for Benjamin’s interest, without paying what was due to him, and the defendant John Hawkins has professed his readiness to make a conveyance for Joseph’s interest, whenever the plaintiffwas willing to receive it.

The case is before us upon the interlocutory decree made below, dissolving the injunction. We see no error in that decree.

This opinion must be certified to the Court of Equity for Buncombe Count}'. The plaintiff must pay the costs of this Court.

Per Curiam.

Ordered accordingly.  