Pitt v. . Moore

Davis, J., (after stating the case). 1. Is the plaintiff en-tited to have a specific performance of the promise made by the defendant to execute to his testator a deed for one half of the mill site ? *90 The plaintiff insists that though not in writing, the contract as alleged, is substantially admitted by the defendant, and the equity of the plaintiff not denied, and that the objection that it was not in writing, but by parol, could only be taken by answer, and as the statute was not set up as a defence in the answer, that question is not before the Court. We take a different view. The defendant does not admit any payment or performance, or part performance, by the testator, so far as it relates to any contract or agreement for the purchase of or title to the land to which the mill was moved. There is not only the fact, as found, that the testator, Lawrence, never paid the defendant for the' one half interest, but the plaintiff fails to set out the consideration or price to be paid, which is an essential and necessary part of the contract. It is true the jury finds that there was an agreement to convey, and that the land was to be partnership property, and that it was worth $10; but what was the contract price ? None is alleged in the complaint, and none seems to have been agreed on. The law required the contract to be in writing, and there is nothing to distinguish it from Gulley v. Macy, 84 N. C., 434, and like cases in which it is held that the Courts will not enforce parol agreements for the sale of land, unless in cases when the defendant in his answer submits to perform the parol contract as charged in the complaint, “ or when he admits it and neither by plea nor answer, insists on the statute.” 2. Is the defendant liable to the estate of plaintiff’s testator for the permanent improvements put upon the land jointly by the testator and the defendant, to the extent of the one half of the costs thereof paid by said testator ? Whatever may have been the ancient rule, it is now well settled by many decisions from Baker v. Carson, 1 D. & B. Eq., 381, in which there was a divided Court, but Ruffin, C. J., and Gaston concurring, and Albea v. Griffin, 2 D. & *91 B. Eq., 9, by a unanimous Court, to Hedgepeth v. Rose, 95 N. C., 41, that where the labor or money of a person has been expended in the permanent improvement and enrichment of the property of another by a parol contract or agreement which cannot be enforced because, and only because, it is not in writing, the party repudiating the contract, as he may do, will not be allowed to take and hold the property thus improved and enriched, “ without compensation for the additional value which these improvements have conferred upon the property,” and it rests upon the broad principle that it is against conscience that one man shall be enriched to the injury and cost of another, induced by his own act. In the case before us, the land on which the mill was situated was of little value — only $10 — the improvements put upon it more valuable — worth by the finding of the jury $1,500 — and put up by the plaintiff’s testator and the defendant, at their joint expense, with the understanding and agreement that they should own the property as partners,, and they continued to deal with it as partnership property down to the death of the testator. While this agreement cannot be enforced as a valid contract for the sale of land, equity will not permit the defendant to enjoy the benefits of it without compensation. It was not by his mere license that the improvements were put upon his land — it was coupled with an expenditure of money by which the land was improved, and therefore coupled with an interest, which gave to the testator rights, of which the defendant cannot deprive him by a repudiation of his parol agreement. Will. & Tar. R. R. Co. v. Battle, 66 N. C., 541. In Bridges v. Purcell, 1 D. & B., 492, it is left an open question, “whether a license to do an act which in its consequences permanently affects the property of him who gives it, when so acted on, that what is done cannot be conveniently undone, may be regarded as a grantee of an interest to the extent of the consequences thereby authorized and *92 therefore not revocable; or whether the license does not necessarily imply a permission for the thing done to remain, notwithstanding the continuing consequences; and therefore the licenser, on a principle of good faith, may be forbidden to withdraw it, without indemnifying him who trusted thereto.” The settlement of these questions was not necessary, as Judge GastoN said, to the determination of that case, but we think that they have been settled by adjudications since, in favor of the equity of those who, acting in good faith, have expended money or labor in improving the property of others in whom they trusted. Such, we think, is the equity of the plaintiff in this case. He is entitled to compensation to the extent of one half of the value added to the land in question, by the permanent improvements made thereon. 3. It is conceded that by the terms of the testator’s will, the plaintiff has authority to make sale of his interest in the mill, but the defendant objects that the plaintiff sets up a partnership between his testator and the defendant, and that this action cannot be maintained, because the property, being partnership property, vests in the surviving partner under § 1326 of The Code. The action is substantially for the settlement of the partnership, and the plaintiff is entitled to have an account and to receive one half of the net profits accrued since the last settlement between the defendant and his testator, and one half of the enhanced value to the land by reason of the improvements, and this relief is within the scope of the plaintiff’s prayer and warranted by his complaint. 4. It appears that after the erection of the mill, A. T. Bruce & Co. became the mortgagees of the defendant’s “ one half interest” in .the property in question, and as they thereby became the legal owners of defendant’s interest, and their rights may be affected by the settlement, they ought to be made parties to this action. *93 There is error, and this will be certified to the end that further proceedings may be had in accordance with this opinion. Error.