Henry v. . Hilliard , 155 N.C. 372 ( 1911 )

A single question is presented by this appeal, and that is, Can the vendee, under a parol contract in regard to land, after payment of the purchase price, compel the execution of a deed to him, when the statute of frauds is not pleaded, the contract is not denied, and there is no objection to the evidence? The authorities seem to be uniform that the vendee is entitled to a conveyance under such circumstances.

In 20 Cyc., 312, note 4, the decisions of the highest courts of sixteen States are cited in support of the text, that, "If he (the vendor) admits the making of the contract, and fails to claim the benefit of the statute, or to demur, he will be taken to have waived it."

Browne on Stat. Frauds, sec. 135, says: "As the statute of frauds affects only the remedy upon the contract, giving the party sought to be charged upon it a defense to an action for that purpose, if the requirements of the statute be not fulfilled, it is obvious that he may waive such protection, or rather, that, except as he undertakes to avail himself of such protection, the contract is perfectly good against him."

Also, Story Eq. Pl., sec. 763: "It seems now understood that (378) this plea extends to the discovery of the parol agreement, as well as to the performance of it; although it has been said that the defendant is compellable by answer, or by plea, to admit or to deny the parol agreement, stated in the bill. But this seems utterly nugatory, for it is now well settled that if the defendant should, by his answer, admit the parol agreement, and should insist upon the benefit of the statute, he will be fully entitled to it, notwithstanding such admission. But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby renounced the benefit of the statute."

The decisions of this Court announce the same doctrine.

In Loughran v. Giles, 110 N.C. 426, the Court says: "The statute of frauds (said Justice Ruffin in McRacken v. McRacken, 88 N.C. 276) was intended to ``close the door upon temptations to commit perjury and the assertion of feigned titles to property.' The evil intended to be guarded against in the enactment of the statute was the attempt to enforce pretended verbal agreements by resorting to perjury, and though it became necessary in attaining this end to put it in the power of a party to avoid, at his election, his own verbal promise to convey land, the statute was not construed as a declaration that all such contracts not in writing and signed by the party to be charged were to be treated, ipso facto, as null and void. Wilkie v. Womble, 90 N.C. 254; Green v. R. R., 77 N.C. 95;Davis v. Inscoe, 84 N.C. 396.

"``A verbal contract for the sale of land, tenements, or hereditaments, or any interest in or concerning them (said the Court in Thigpen v. Staton,104 N.C. 40), is good between the parties to it, and will be enforced if they agree upon its terms, and the party to be charged does not plead thestatute.'" Syme v. Smith, 92 N.C. 338; Thigpen v. Staton, 104 N.C. 40, and Hallv. Lewis, 118 N.C. 510, are to the same effect. The rule does not, however, apply except when there is no denial of the contract, and the statute is not pleaded.

(379) The party to be charged may simply deny the contract alleged, or deny it and set up a different contract, and avail himself of the statute, without pleading it, by objecting to the evidence; or he may admit the contract and plead the statute; and in either case the contract can not be enforced. Browning v. Berry, 107 N.C. 235; Jordan v.Furnace Co., 126 N.C. 147; Winders v. Hill, 144 N.C. 617.

We are of the opinion there was error in the ruling of the court on the record, as it is presented to us, and that the appellant is entitled to a conveyance as prayed.

Reversed.

Cited: Herndon v. R. R., 161 N.C. 654.