Opinion
(December Term, 1845.)
1. A bill paying for the specific performance of a contract for the conveyance of land, is defective if it does not contain so particular a description that the Court may know with certainty the land of which they are asked to decree a conveyance.
2. If a bill be brought for the specific performance of a parol contract for the conveyance of land, although the defendant does not rely upon the plea of the statute rendering such contracts void, yet, if he denies the contract as stated in the bill, and insists that the real contract was a different one, this Court will not permit parol evidence to be heard in support of the plaintiff's claim.
3. Part performance, such as the payment of the whole of the purchase-money and the delivery of the possession to the vendee, will not, in this State, dispense with a writing, if the statute be insisted on, nor admit a parol proof of a contract different from that stated in the answer.
Cause removed from the Court of Equity of PERSON, at Fall Term, 1845, by consent of the parties.
Venable for the plaintiff.
E. G. Reade for the defendant.
The bill was filed in 1844, and states, that, in 1840, the defendant made a parol contract to sell to the plaintiff "a certain parcel of land in the county of Person, to contain by contract 200 acres, at $2 per acre"; that, some time in the same year, the plaintiff and defendant partly performed the said parol agreement, by the payment to the defendant by the plaintiff of the sum of $240, for which the defendant gave receipt in the following words: "Received of Mr. Drury Allen, two hundred and forty dollars, in part for a certain tract of land lying on Flat River, including Taylor Hicks' spring-house and lot, etc., and adjoining the land of Lewis Daniel, Womack, and others."
The bill further states, that, upon such payment, the defendant let the plaintiff into possession "of the said land," in pursuance of the agreement, and that the plaintiff has offered to pay the residue of the purchase-money, and requested the defendant to convey to him the land in fee; but that the defendant refused to do so, for the reason that the defendant denies the contract as herein stated, and sets up another agreement in relation thereto, and threatens to turn the plaintiff (126) and his tenants out.
The prayer is for a decree for the specific performance of the said agreement, and that the defendant be compelled "to convey to the plaintiff the said land as agreed between them."
The answer admits, that, in 1840, the parties entered into a parol contract for a tract of land, and that the defendant received a sum of money, either $220 or $240, thereon, as a part of the purchase-money. But the defendant denies positively, that the contract was as set forth in the bill, and says that it was essentially different. The answer then states, that the defendant is the owner of a tract of land containing between six and eight hundred acres, and that the plaintiff applied to him to purchase a part of the said land, to be laid off at the west end of the tract; that the plaintiff at first spoke of buying 200 acres, and the defendant agreed to sell him that, or any other quantity he might want, at the price of $2.50 per acre and not at $2, as stated in the bill; and the plaintiff concluded to take a parcel of land on those terms; and that it was further agreed, that the parties should employ a surveyor to lay off the quantity the plaintiff might choose, at the west end of the tract, and to run, so as, at the least, to include therein a house and small farm occupied by one Taylor Hicks, who then lived on a part of the land, as a tenant of the defendant. The answer states, that, not long afterwards, the parties employed a surveyor, who made a survey precisely as he was directed by the plaintiff, who was present, and marked the lines and corners himself; that when the surveyor had run east far enough to make 200 acres by running across the tract to the opposite north line, he informed the plaintiff and the defendant of the fact, and the former said he wished to include the spring and Hicks' improvements, and ordered the surveyor to proceed on the former course, until the plaintiff should tell him to stop; and so it was accordingly done: that the land thus laid off was plotted (127) by the surveyor and the quantity ascertained to be 366 acres; for which, in a few days, the surveyor prepared a deed, which the defendant executed, and had attested and tendered to the plaintiff, requesting him to accept it and pay the residue of the purchase-money; but that the plaintiff refused. The answer states, that, nevertheless, the plaintiff entered into the land and settled his son thereon, and that neither the farm nor the houses are within a tract of 200 acres, laid off at the west end of the tract. The answer further states, that the defendant would have been willing the plaintiff should have taken only 200 acres, or any other quantity, if he would have designated the particular quantity and part; but that, having selected the tract of 366 acres, and entered into possession of it, and then refused to accept a deed for it, and also denying the price agreed on, the plaintiff seemed, as the defendant believed. determined to baffle him, by keeping possession without paying for the land, and therefore, the defendant tendered back the money he had received from the plaintiff, and give him notice that he would annul the contract; but the plaintiff still refused to receive the money and rescind the bargain, and, at the same time, refused to accept the deed and pay the residue of the purchase-money. And the answer insists, that the defendant is not now bound to convey any part of the land.
Replication was taken to the answer, and the parties took proofs. The plaintiff proved the execution of the receipt for $240, of the tenor set out in the bill. Several witnesses for the plaintiff prove, that the price agreed on was $2 per acre; while others more numerous and, apparently, unconnected with the parties, state that the plaintiff offered $2, but finally agreed to give $2.50, and frequently afterwards, acknowledged the latter to be the price. Two or three witnesses state, that when the land was surveyed, the plaintiff said that, although he wanted Hicks' improvements, he was not able to pay for (128) more than 200 acres and would not take more; while others, preponderating in numbers and opportunities of information, and including the surveyor selected by the plaintiff, depose positively, that the plaintiff, when informed that the survey had proceeded far enough for 200 acres, directed the surveyor to go on, and include Hicks' improvements and a particular parcel of good wood land, and, indeed, that the tract, as surveyed and containing 366 acres, was selected by the plaintiff himself, who fixed on the corners and marked them and the lines with his own hands, and that the plaintiff entered into the house and fields before occupied by Hicks, which would not be included in a tract of only 200 acres.
The plaintiff could get no decree on his bill, as at present framed, if it were admitted by a demurrer or in an answer; for it contains no description of the land, of which he seeks the conveyance, from which the Court could decree an immediate conveyance of any land in particular, or could ascertain the land by ordering a survey. In the beginning of the bill it states the land to be "a certain parcel of land lying in Person, to contain 200 acres." It then sets out the defendant's receipt for $240, as paid in part "for a certain tract of land lying on Flat River, including Taylor Hicks' spring-house and lot adjoining the land of Lewis Daniel, Womack, and others." The receipt is but little more specific than the "200 acres in Person County"; for it mentions no quantity, nor how any land is to be laid off around the improvements of Hicks. Of course, there can be no decree, when the parties leave it altogether uncertain, what was the subject of their contract. It seems highly probable, that there never was, in truth, any final and precise contract between the parties, for any particular piece or quantity of land. At all events, the (129) plaintiff states none in the bill, in such terms as to obtain an effectual conveyance for any land, even if the deed were made in the very terms in which he asks it.
But, besides the difficulty mentioned, there is that of the nature of the alleged contract: it being by parol and denied by the answer. If the receipt had sufficiently described the land and price, it would have authorized the relief. But of itself it amounts to nothing, and no contract can be made out from it, unless by the help of parol evidence; and the reception of that is forbidden by the statute of frauds, Rev. St., Ch. 50, sec. 8. The defendant, if he had chosen that mode of defense, might have brought the cause to an end at once by a plea of the statute. But the defendant has thought it due to himself, to state his willingness and endeavor to deal fairly. and this he does by denying the contract, as set out in the bill, in the two most essential particulars: the one is in the price, being a difference of one-fifth between them; and the other is in the quantity of land agreed for. The parties are, therefore, directly at issue as to the substance of their contract; and, as it is admitted to be in parol, there is no mode of ascertaining which is right, but by hearing the oral testimony of witnesses. That, the Legislature must have meant in such a case to exclude. If, indeed, a defendant submits to perform a parol contract charged in the bill, there is no difficulty in decreeing it; for the danger within the purview of the act is excluded. Perhaps, it may be the same, if the defendant admits the alleged contract in his answer, and neither by a plea nor the answer insists on the statute. But, if the defendant deny the agreement charged in the bill altogether, or deny it as charged, and set up a distinct and inconsistent agreement, it is impossible to move one step further without doing so in the teeth of the act; which, as a rule of evidence, upon a point of fact disputed between the parties, must be as binding in this Court as in a court (130) of law. It was so laid down in Whitaker v. Revis, 2 Bro. C. C., 567, and seems so evident from the nature of the thing, that there can scarcely be need for authority on it. The propriety of that construction and the value of the statute, thus understood, could not be rendered more evident, than by the case before us; in which, although the proof preponderates very directly in favor of the defendant, there is the most direct conflict between numerous witnesses, both as to the land contracted for and its price. We have read the proofs, as they are filed; but merely as a matter of curiosity; and the danger of hearing such evidence upon a question of this kind and of inducing persons, thereby, to rely on it, could not be better exemplified than in this case.
The alleged part performance could avail nothing, were the contract established in respect to the identical land and the price, as in this State it was finally settled, in Ellis v. Ellis, 16 N.C. 180, 341, that doctrine did not prevail, and that even the payment of the whole purchase-money and the delivery of possession to the vendee would not dispense with a writing, if the statute be insisted on, nor admit a parol proof of a contract, different from that stated in the answer. A vendor may in some cases practice a fraud under this rule; but the opposite one would open a door to numberless perjuries, alike, if not more, productive of frauds on the other side.
PER CURIAM. THE BILL DISMISSED WITH COSTS. Cited: Murdock v. Anderson, 57 N.C. 78; Capps v. Holt, 58 N.C. 155; Richardson v. Goodwin, 59 N.C. 231; Phillips v. Hooker, 62 N.C. 197; Farmer v. Batts, 83 N.C. 388; Gulley v. Macy, 84 N.C. 442; Fortescue v. Crawford, 105 N.C. 31; Blow v. Vaughan, Ib., 203, 6, 9; Perry v. Scott, 109 N.C. 379; Lowe v. Harris, 112 N.C. 474; Puryear v. Sanford, 124 N.C. 283; Rhea v. Craig, 141 N.C. 610.
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