Dupree v. . Moore

*629 Seawell, J. The defendant appellee depends partly on existence of a. parol contract to convey tbe lands in controversy and partly on the principle of estoppel in pais to support recovery under his cross action. But the alleged parol contract to convey is not supported by the evidence against all the plaintiffs; estoppel in pais is not pleadable against the admitted minors nor is there supporting evidence as to all of the adult, plaintiffs. 1. "Where there has been a parol contract to convey lands and the statute of frauds is invoked by the promissor, we say, in shorthand, that the contract is void. It cannot be specifically enforced; but the clutch of circumstance and incident comprising the whole transaction may engender important legal consequences. A person let into possession of land under a parol contract and who has, in good faith and reliance on the promise to convey put valuable improvements on the land, cannot be ejected at the instance of the prom-issor under a plea of the statute of frauds (G. S., 22-2), without compensation for the improvement. Union Central Life Insurance Co. v. Cordon, 208 N. C., 723, 182 S. E., 496, 497; Eaton v. Doub, 190 N. C., 14, 22, 128 S. E., 494, 498, 40 A. L. R., 273. First, however, there must be the contract. "Whatever the allegations in defendant’s cross action, the evidence falls short of inferences tending to establish such a contract as to the heirs or cotenants as a whole, or the authority and legal capacity of Annie "Williams to act for them. According to the defendant’s testimony, when the alleged contract was originally made with Annie, Bruce Dupree was present and remarked that “whatever Miss Annie says is all right with me.” But, testified the defendant, he did not talk with James nor Jacob nor Elizabeth Vines. He did talk with Tom and Joshua, but they were minors. E. A. Daniel testified that according to his recollection the “whole group” (meaning the heirs) came to his office and that the “conversation was” that they wanted to make a deed to Moore and he was to pay the taxes. They were informed that since there were minors concerned this could not be done without a special proceeding and the cotenants were not willing to pay the cost of such proceeding. “It was my understanding’,” said the witness, “that they said they would wait until the minors were grown.” The defendant, therefore, entered upon the premises with the knowledge that he had no contract with the minors, Tom and Joshua, and none apparently with certain others of the cotenants, if the evidence indicates a contract with any of them. This Court has no power to split up what was alleged by defendant as an integral contract and so treated on the trial and in the judgment, so as to give the defendant relief if he is entitled to any, against the *630 •cotenants who may have attempted to convey the land; and we do not suggest that this is feasible on a retrial. 2. The theory of estoppel rests upon the evidence tending to show that certain of the plaintiffs, according to defendant’s evidence, saw him building on the land and made no protest. It equally appears from the evidence that certain others did not. As to two of the cotenants, admittedly minors, since they did not have the capacity to contract they could not create an estoppel against themselves. “Want of legal capacity cannot be supplied by estoppel and a person cannot be estopped in pais when he cannot bind himself by contract.” 19 Am. Jur., “Estoppel,” p. 644. The plaintiffs moved for judgment non obstante veredicto. Ordinarily the plaintiffs are not entitled to such judgment unless it may be properly rendered upon the pleadings. Palmer v. Jennette, ante, 377; Jernigan v. Neighbors, 195 N. C., 231, 141 S. E., 586; Winder v. Martin, 183 N. C., 410, 111 S. E., 708; Fowler v. Murdock, 172 N. C., 349, 90 S. E., 301; Baxter v. Irvin, 158 N. C., 277, 73 S. E., 882; Doster v. English, 152 N. C., 339, 67 S. E., 754; Shives v. Cotton Mills, 151 N. C., 290, 66 S. E., 414. We are unable to conclude that there remains no issuable matter under the pleadings. However, the verdict and judgment are not supported by the evidence, and upon their objections and exceptions thereto the plaintiffs are entitled to a new trial, and it is so ordered. New trial.