Campbell v. . Campbell , 55 N.C. 364 ( 1856 )

On the 8th of Nov., 1847, the plaintiff executed to his son, the defendant, a deed for a tract of land, (describing it) supposed to contain three hundred acres, in consideration, as expressed in the deed, "of one thousand dollars, in hand paid, or secured to be paid." An action of ejectment was brought on this title returnable at the Spring Term, 1853, of Sampson Superior Court.

(365) The plaintiff alleges that he was in debt, and that he and the defendant agreed that the latter should pay off his debts and take a conveyance for one-half of the land above described; that the defendant proceeded, and did pay off several of the debts, but he then complained that he had no security for the money he was thus advancing; whereupon, to advance his son, and to encourage him in the payment of the debts as he had undertaken, he yielded to the persuasions of the defendant, and executed the above mentioned deed, but with an express understanding and agreement, that when the debts were paid off, one-half of this land was to be reconveyed to him; that the defendant, paid little more of the debts, but left the land be sold for some of them, which he bought at sheriff's sale; that this sale was brought about by the plaintiff himself, in order to force the defendant to pay off the debts, "and it was expressly understood, and that the truth was" (as pl'ff. alleged) that the sheriff was only selling the one-half of the land, which plaintiff was to convey to defendant, and that by an oversight and misapprehension on his part, and a cunning device on the other, the defendant took a sheriff's deed for the whole land. Plaintiff alleges further, that he has often called upon the defendant to pay the rest of his debts and to reconvey one-half of the land to him, which he has heretofore failed and refused to do, but is prosecuting the action of ejectment against him, and as he has no legal title, plaintiff will be turned out of possession.

The prayer of the bill is for a conveyance of one-half of the land, and an injunction also for general relief.

The defendant filed an answer denying the allegations relied on by the plaintiff.

There were replication to the answer, and proofs, which are sufficiently noticed in the opinion of the Court. Among the allegations of his bill, there is a statement by the plaintiff that he executed to the defendant, (366) his son, a deed whereby he conveyed to him the whole of the land in controversy, upon an agreement between them that, upon payment by the son of certain debts, due from the father, the deed should be destroyed, and then the plaintiff should execute to the defendant, another deed, conveying one-half, only, of the same land. The plaintiff, admitting that the debts have been, in part, paid by the defendant, seeks a reconveyance of one-half the land, and that the defendant may be enjoined from prosecuting an action of ejectment which he had commenced for the purpose of turning him out of the possession of the land. The defendant denies the agreement, and insists that the deed was intended to be, what it is, an absolute conveyance in fee for the whole tract of land. The only evidence tending to prove the agreement, as insisted on by the plaintiff, is by parol; and the question is, whether a Court of Equity will, under such circumstances give relief.

We cannot see any difference in principle between this case and the ordinary one of a bill for the specific performance of a parol contract for the purchase of land. The statute of frauds declares such a contract to be void; because its policy was to prevent the title of land from depending upon any other than evidence in writing. The plaintiff does not pretend, in the present case, that the deed was obtained from him by means of either fraud, accident, mistake, ignorance or undue advantage, but only that he "yielded to the persuasions of the defendant." Having knowingly and intentionally transferred the whole tract of land to his son, he is now endeavoring to get back one-half of it, upon parol proof of an agreement by his son to reconvey it. This would expose the title of the defendant's land to the danger of perjured or mistaken testimony. Why should it be allowed in this case more than any other? The mischief is the same and we cannot imagine a sound reason for any distinction in the principle applicable to it. However much we may regret that we cannot give relief in this particular case, we are consoled by the reflection that, in denying it, we are upholding the policy of the law in the establishment of the salutary principle (367) that men's titles to land shall not depend upon the "slippery memory of witnesses."

We have not noticed the alleged mistake in relation to the sheriff's deed; because supposing it to be clearly proved, it does not aid the plaintiff in the relief upon the other part of the transaction.

The bill is dismissed, but without costs.

Per curiam.

Bill dismissed.

Cited: Bonham v. Craig, 80 N.C. 229; Hemphill v. Hemphill, 99 N.C. 440;Avery v. Stewart, 136 N.C. 434; Chilton v. Smith, 180 N.C. 474;Davenport v. Phelps, 215 N.C. 328; Ebert v. Disher, 216 N.C. 48; Wolfe v.Land Bank, 219 N.C. 317.