Magee v. . Blankenship

Smith, C. J., (after stating the facts). These recitals prepare the way for our entering upon an examination of the plaintiff’s exceptions to the ruling of the Court. lsi Exception. All the issues offered for the plaintiff' were submitted to the jury, accompanied with a remark from the Court in regard to the second of the series, that the response would so much depend upon the findings upon the series presented by the defendants, that it might be that the jury would not have to pass upon them at all, and to that extent the plaintiff’s issues were reserved. This exception is not intelligible in view of the fact that the plaintiff’s issues were, each of them, submitted to and answered by the jury. There is, then, some inadvertence, through which an exception, proper at the time, finds its way into the case, after the grounds of it are removed. 2d Exception. Several witnesses were allowed, after objection from the plaintiff, to testify to declarations of said Annie T., to the effect that her husband had prepared a deed conveying the lot to Blankenship, the ancestor, signed by himself, and handed to her for her signature, with a view to its execution, and that she had burned it up. One witness says this declaration was made soon after her husband left the county in November, 1879; while another heard a similar remark from her about December, 1880, and before she left. As their deed to the plaintiff was made on December 1st, 1880, (and there seems to be some uncertainty about *568 these dates, for Larkin must have been here to unite with said Annie T. in making that deed, and could not have permanently departed, as the case states, more than a year before), the conversations deposed to must have been made at or before the making of that deed, and while, under Long’s deed, the legal title had been put in her. In such case, the evidence would fall under the rule declared in Guy v. Hall, 3 Murph., 150; in the opinion in which case, Henderson, J., speaking of the persons who make the statement, says: “It is therefore evidence against him, and his subsequent purchaser stands in his situation; for he cannot better his title by transferring it to another, or thereby affect the rights of those vjho have an interest in his confessions.” To the same effect, see Johnson v. Patterson, 2 Hawks, 183; Satterwhite v. Hicks, Busb. L., 105; Headen v. Womack, 88 N. C., 468. The declaration, if made after the execution of the deed to the plaintiffs, the said grantors remaining in undisturbed possession, and exercising the same proprietary rights over the property as before, may perhaps be admissible under the decision in Hilliard v. Phillips, 81 N. C., 99; but we propose to put the competency upon the other ground. 3ci Exception. The plaintiff objected to the hearing of any testimony as to the enhanced value imparted to the lot by improvements put upon it during the defendants’ occupancy. We think this was proper in measuring the extent of the defendants’ equitable claim to compensation, in the event of the Court’s refusal to recognize the contract and the right to to a specific performance of it, and this is directly called for in defendants’ 8th, 9th and 10th issues. 4th Exception. The remaining exception is based upon the fact that the exchange was not under a written contract, and moreover, if the destroyed deed could constitute a memorandum within its requirements, its execution in November, 1879, could not relate back and effect the title vesting in said Annie T. in 1877. We are of opinion that this deed, which *569 was drawn in executing the contract, and therefore must have embodied all of Larkin’s part of the agreement, was a satisfaction of the demands of the statute, and so in substance it is held in Blacknall v. Parish, 6 Jones Eq., 70. Evidence in writing, when the writing contains all the stipulations assumed by the person to be charged, and authenticated by his signaturej^&^^ompliance with the law. In Barry v. Coambe, 1 Peters, 640, in an account stated, were these words: “By my purchase of your | E. B. wharf and premises, this day agreed on between us,” the credit being carried out in figures, $7,578.68, and deducted from the amount charged to Barry, followed by a memorandum thus: “ Balance due G. Coambe, fifteen hundred dollars, payable in one, two and three years, with interest,” with his signature, “ G. Ooambe.” This was held a compliance with the statute, because all the essential elements were found in the entry. “It is written evidence,” says the Court, “which the statute requires, and a note or letter, and even in one case a letter the object of which was to annul the contract, on a ground really not unreasonable (3 Atk., 12; 1 Sch. & Lef., 22), has been held to bring a case within the provisions of the statute.” “There have been cases,” remarks Lord Chancellor Hardwick, in Welford v. Beaseley, 3 Atk., 12, “ where a letter written to a man’s own agent, and setting forth the terms of an agreement as concluded by him, has been deemed to be a signing within the statute and agreeable to the provisions of it.” So, in pursuance of the ruling in this case, it has been held, that a writing in terms intending to be a conveyance of lands, but which, not being by deed, cannot operate as such, is and may be considered an agreement. Rex v. Redgewell, 6 B. & C., 665. The next inquiry'is, as to the rights of said Annie T. to retain the property under her deed. The jury say that her *570 husband’s money paid for the land, and that she destroyed her husband’s deed to Blankenship therefor. Her title was subsequent to this, and therefore taken with notice of the terms of the exchange. Moreover, they undertake to dispose of the lot of Blankenship in recognition of the exchange. The contract is not void, ipso facto, because not in writing, the statute relating to the mode of procedure and the evidence required in proof, and a reduction of it to writing afterwards removes the statutory impediment, and, if explicit, imparts to the contract an original efficacy. Thus, if a contract be made in a foreign country, not required by its law to be in writing, but so required in this, it cannot be enforced in our Courts, because proof only in writing is competent to establish it. Lenoux v. Brown, 12 C. B., 801; Bonham v. Craig, 80 N. C., 224; Foust v. Shoffner, Phil. Eq., 242; Green v. N. C. R. R. Co., 77 N. C., 95; Mizell v. Burnett, 4 Jones, 249. We think it plain that the wife cannot retain the property conveyed to her under such circumstances, in derogation of the contract rights of Blankenship. There is no error, and the judgment must be affirmed, except that the plaintiff be required not to convey to the defendants generally, but to the defendant Mary E. a life estate in one-third of said lot, and the other two thirds, and remainder in the one third after her death, to the defendant William. No error. Affirmed.