Spivey v. . Harrell

Merrimon, J., (after stating the case.) Unquestionably the appellant is bound by the judgment in the special proceeding mentioned, and will continue to be until, and unless it shall be set aside for irregularity, or declared void for fraud. The Court, in that proceeding, had jurisdiction of him and the subject matter thereof, and- moreover, he consented to the judgment. The answer of the appellant to the complaint is very indefinite, and it is not at all clear whether his purpose by it was to attack the judgment in the special proceeding for fraud, or whether his purpose was to allege a parol agreement, by which the appellees were to purchase the land mentioned in the proceeding at the sale thereof, made in pursuance of the judgment mentioned, and then convey the same to him for a stipulated consideration, and insist that thereby a parol trust was created in his favor, but we think *50 that whether his purpose be the one or the other the judgment must be affirmed. If the purpose be to attack the judgment in the special proceeding for fraud, as that proceeding is ended, this must be done by an independent action for that purpose. If the. judgment is for any cause irregular, it might be set aside by a proper motion in the proceeding. Fowler v. Poor, 93 N. C., 466, and the cases there cited; Brickhouse v. Button, 99 N. C., 103. If the purpose was to allege an agreement and a parol trust created by it in favor of the appellant, then we concur with the Court below, in the opinion that no sufficient agreement is alleged. ' The allegation of the answer in this respect is that “prior to the alleged sale he (the appellant) had an agreement with Spivey, that said Spivey was to buy the land and let defendant have it, said Spivey agreeing to do so, this defendant paying him a little advance upon it, or a little more than he should give,” using the word “ little.” It is not alleged that the appellees purchased the land for the appellant, or that the latter supplied the money to purchase it' — on the contrary, the appellees were to purchase it for themselves, and afterwards sell it to the appellant at a “little advance” — whatever that might mean — upon the -price they paid. The agreement specified no certain price to be paid, nor one capable of being reduced to a certainty. At most, the appellee agreed by parol to sell to the appellant a certain interest in land at a price not fixed. This created no trust, and no contract that a Court of Equity will enforce. No such issue as that proposed by the appellant was raised by the pleadings, and the Court properly refused to submit it to the jury. ( • Affirmed.