Coxe v. . Dillard , 197 N.C. 344 ( 1929 )

Plaintiff alleged that J. W. Keys owned a tract of land in the city of Asheville and sold a one-half-undivided interest therein to him prior to 14 December, 1925, and that in order to secure the balance of the purchase price, plaintiff executed and delivered to said Keys his promissory notes aggregating $10,250, and securing said notes by a mortgage upon the land; that the sum of $3,750 has been paid on said indebtedness, leaving a balance due of $6,500.

Plaintiff further alleged that on 26 February, 1926, he sold his undivided interest in said land to L. E. Sorrell, W. L. Harrell, J. C. Dillard, Joseph A. Johnson and W. B. Troy, "and for the purpose of convenience to the parties purchasing the same and at their request the deed to said property was made to L. E. Sorrell," etc. Sorrell executed and delivered to the plaintiff three promissory notes aggregating $20,700, "and as a part of the consideration the said above-named parties assumed and agreed to pay the sum of $6,500 then owing to the said J. W. Keys and wife," etc. That on the same day, to wit, 26 February, 1926, Sorrell executed and delivered a deed to the said W. L. Harrell, J. C. Dillard, Joseph A. Johnson and W. B. Troy, in which said deed the following provisions appeared:

(a) "The above-described property being conveyed hereby to the parties of the second part in the following proportional interests: To W. L. Harrell one-ninth; Joseph A. Johnson two-ninths; J. C. Dillard two-ninths, and W. B. Troy two-ninths."

(b) "Except the sum of $27,200, which said indebtedness the parties of the second part hereby agree and assume and agree to pay in proportion to their said interest in said land and premises above set forth."

It will be observed that the said sum of $27,200 included the $6,500 indebtedness due Keys and the $20,700 due plaintiff.

Plaintiff further alleged that the defendants failed to pay the indebtedness due Keys. Whereupon Keys advertised the property and sold it at public auction, the plaintiff becoming the purchaser thereof for the sum of $1,000. Whereupon plaintiff prayed judgment against the defendants upon the notes amounting to $20,700 executed and delivered to him and the deficiency upon the Keys notes, the whole aggregating $27,816. The defendants, Dillard and Johnson, demurred to the complaint upon the ground that there was a misjoinder of parties and causes of action, and that the complaint did not state facts sufficient to constitute a cause of action.

The trial judge overruled the demurrer and the defendants appealed. The plaintiff alleged that the land was sold to the defendants, but that the deed was made to L. E. Sorrell for their convenience and at their request. The demurrer admits this allegation. Hence Sorrell was merely holding the title to the land for the use and benefit of the defendants.

Plaintiff further alleged that Sorrell conveyed the property to the defendants by a deed containing a covenant according to the terms of which the defendants agreed to pay the indebtedness described in the complaint. The demurrer admits this allegation.

Upon this state of the record the trial judge was fully justified in overruling the demurrer.

Defendants, however, insist that the notes in controversy were signed not by them, but by Sorrell and plaintiff, Coxe, and that therefore they cannot be held upon an oral promise to answer for the debt or default of another under the provisions of C. S., 987.

This position cannot be maintained for two reasons:

First, it appears from the complaint that the land was purchased by Sorrell for the use and benefit of defendants. Hence the defendants had a personal and pecuniary interest in the transaction, and the statute of fraud would not apply. Dale v. Lumber Co., 152 N.C. 651, 68 S.E. 134;Peele v. Powell, 156 N.C. 554; 73 S.E. 234; Powell v. Lumber Co.,168 N.C. 632, 84 S.E. 1032; Springs v. Cole, 171 N.C. 418, 88 S.E. 721;Kelly Handle Co. v. Crawford Plumbing Co., 171 N.C. 495, 88 S.E. 514. See, also, Keller v. Parrish, 196 N.C. 733, and Justice v. Sherard, ante, 237.

Second, it further appears that the defendants received a deed for their proportional interests in the land in which said deed it was agreed that they would assume and pay off the indebtedness described in the complaint. The grantee in a deed containing covenants and stipulations purporting to bind him becomes bound for their performance even though he does not execute the deed. Peel v. Peel, 196 N.C. 782.

Affirmed.