Hayman v. Stafford

PHILLIPS, Judge.

In entering judgment for the plaintiffs the court concluded from the evidence presented as a matter of law that in selling the property involved defendants violated the provisions of our Real Estate License Law which prohibits unlicensed persons from selling real estate for others in certain instances. G.S. 93A-1 provides that “it shall be unlawful for any person, partnership, association or corporation ... to act as real estate broker . . . without first obtaining a license issued by the North Carolina Real Estate Commission.” G.S. 93A-2(a), in pertinent part, provides that a real estate broker is anyone who for a valuable consideration sells or offers to sell real estate for others. And G.S. 93A-2(c)(5), in pertinent part, states that the provisions of Chapter 93A do not apply to “[a]ny person, while acting as a trustee under a trust agreement, deed of trust or will, . . .” Defendants contend that the evidence before the court indisputably establishes that Stafford held and sold the property involved as a trustee for the plaintiffs and thus did not violate the Real Estate License Law in doing so. We agree. The evidence plainly shows, as plaintiffs concede, that the land was conveyed to defendants not just to enable Stafford to resell it at a better price than plaintiffs could get for it, but also to enable Stafford to obtain time from plaintiffs’ creditors, avoid a distress sale under foreclosure, and pay plaintiffs’ debts. In their brief plaintiffs further concede that in holding the land for plaintiffs’ benefit and paying their debts from the sale price that defendants acted in a fiduciary capacity and were trustees for plaintiffs “in a sense.” We think that Stafford was a trustee in every sense and was thus beyond the purview of the Real Estate License Law.

Plaintiffs’ own evidence indisputably shows that by agreement they turned their property and financial problems over to defendants and that all of the elements of a trust were present: The plaintiffs were in financial distress and asked defendants to help them; the parties agreed that plaintiffs would convey their property to defendants and that defendants would either manage or sell it for the plaintiffs’ benefit; and their agreement in that respect was fully carried out. The property was conveyed and defendants sold part of it, used the proceeds for plaintiffs’ benefit and stands ready to return the unsold property to plaintiffs. That the parties did not sign the agreements is immaterial; the Statute of Frauds, G.S. 22-2, does not apply to executed contracts. Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785 (1954). Since the terms were discussed, agreed to, and substantially performed by all concerned they constitute a perfectly valid trust agreement between the parties; and since defendants sold plaintiffs’ land under that agreement Chapter 93A has no application, as G.S. 93A-2(c)(5) explicitly provides. The summary judgment entered for the plaintiffs was therefore in error and we vacate it. The court also erred in not rendering partial summary judgment for the defendants, because the evidence indisputably shows that defendants sold the land under a valid agreement entitling them to be compensated for their services; only the amount of the commission or compensation due defendants is in doubt and is an issue of fact for the court below to determine.

The judgment in favor of the plaintiffs is vacated and the cause is remanded for further proceedings in accord with this opinion.

Vacated and remanded.

Judge BECTON concurs. Judge EAGLES dissents.