Austin v. . McCollum

*818 Per Curiam. The only exceptive assignments of error discussed in the appellants’ brief are those that question the sufficiency of the evidence as to a written contract to convey on the part of the defendants’ testator within the effect and meaning of the statute of frauds. O. S., 988. The pertinent facts in evidence tended to show that on 23 November, 1931, John A. McCollum had prepared by a justice of the peace a deed to the plaintiffs, reciting “that said party of the first part, in consideration of ten dollars and other valuable considerations to him paid by the parties of the second part, the receipt of which is hereby acknowledged, has bargained and sold” to the parties of the second part the locus in quo, and signed and acknowledged the same, stating at the time “that he was going to keep it (the deed) as long as he lived, and was going to give it to Mr. Austin and Mrs. Austin for taking care of him,” and that said deed was found among the valuable papers of the deceased after his death. On these facts, the written deed describing the property, formally prepared at the behest of the defendants’ testator, and held for delivery to the plaintiffs upon the completion of their contract to care for him as long as he lived, is a sufficient memorandum in writing within the intent and meaning of the statute of frauds, and the defendants’ assignments of error must be overruled. Harper v. Battle, 180 N. C., 375. “While the authorities elsewhere are conflicting, it is the rule in this jurisdiction that when one, who has agreed orally to sell land, prepares and signs a deed, which substantially expresses the bargain, and delivers the same in escrow, such writing is a sufficient memorandum to meet the requirements of our statute of frauds, and the contract may be considered and dealt with as a valid and binding agreement. Such was the holding in Pope v. McPhail, 173 N. C., 238, 91 S. E., 947, and Vinson v. Pugh, ibid., 189, 91 S. E., 838; and the decisions in Flowe v. Hart wick, 167 N. C., 448, 83 S. E., 841, and MaGee v. Blankenship, 95 N. C., 563, are in recognition of the same principle.” Oxendine v. Stephenson, 195 N. C., 238. While the deed in the instant case was not placed in the hands of a third person to be delivered upon the happening of a contingency or the performance of a condition, it was actually prepared and held by the grantor for the purpose of such delivery, and comes well within the principle adopted by this Court. The judgment of the Superior Court is Affirmed.