Tucker v. . Markland

Merrimon, J. The first exception is groundless. The parol contract in question, as to proof of its existence, for *426 the purposes of this action, stood on the like footing as other ordinary contracts. It was sufficient to prove, by a preponderance of evidence, that it was in fact made, and, if so, the purchaser could insist upon such relief as in equity he might be entitled to have. There was nothing in the relation of the parties, nor were there considerations of policy or conscience that rendered it necessary that the consideration paid for the land should be “full and fairelse the purchaser must lose what he in good faith paid, if the vendor saw fit to avail himself of the statute rendering such contracts void. The latter part of the special instructions asked for was immaterial. Whether the purchaser got an estate legal or equitable, or not, he was entitled, under the circumstances, to be reimbursed the money he paid to the appellant for the land. It seems that having paid the money he took possession of the land in pursuance of his supposed right under the voidable contract of purchase and with sanction of the vendor. It would be inequitable and against conscience to allow the latter to turn him out of possession thereof without restoring his outlay in cash and for valuable improvements he put on the land while so in possession. The contract was void under the statute if the vendor saw fit to avail himself of it, but he could not be allowed to take fraudulent advantage of a contract he might and did treat as void. He took the purchase money and induced the vendee to take possession of the land and make valuable improvements on it, believing he would get the title therefor. Shall the Court allow the vendor to keep the money of the vendee, which he thus obtained, while it helps him to get possession of the land ? Surely not. The Court of Equity will not enforce the contract because the statute pleaded renders it void, but it will not help the vendor to consúmate a fraud. Albea v. Griffin, 2 D. & B. Eq., 9; Baker v. Carson, 1 D. & B. Eq., 381; Cham *427 bers v. Massey, 7 Ired. Eq., 286; Thomas v. Kyles, 1 Jones Eq., 302; Love v. Neilson, Ibid, 339 ; Syme v. Smith, 92 N. C., 338; Cade v. Davis, 96 N. C., 139; Pitt v. Moore, 99 N. C., 85. The parol contract referred to is peculiar. The vendor contracted to sell his expectancy in the lands of his mother specified in the complaint. The contract could not have been executed in the life-time of the mother, because while she lived he had no estate — nothing—to convey. It was, in effect, an agreement to convey the undivided interest the vendor might have in the land of his mother, as one of her heirs-at-law, immediately upon her death. McDonald v. McDonald, 5 Jones Eq., 211. As to the second exception. The Court might direct the money to be paid into Court, to be disposed of according to law. But if for any cause it turns out that the administrator ought to be a party, the Court may, and ought yet, with a view to the ends of justice and a complete determination of the action, to direct him to be made a party defendant. The Code, § 275; Isler v. Koonce, 83 N. C., 55. The third, fourth and fifth grounds of exception are not well founded. If the vendee in his life-time, after the death of his mother, in pursuance of their parol contract of purchase mentioned, placed valuable improvements on the land, the latter should account for such improvements to the extent of the interest he undertook to sell by parol. The vendee placed all such improvements on the land for his own benefit, no doubt believing that he would have the just benefit of them, but it has turned out that the vendor was not willing that he should do so in his life-time, nor is he willing that his heirs shall do so since his death. The vendor is not required to account for the whole value of such improvements — he accounts only to the extent of his interest, because to that extent he gets benefit. No question is made, so far as appears, as to the liability, in this respect, of any other party to the action; be this as it may, the appellant is *428 <^,lled upon to account to the extent of his liability, and this is in question. This may be ascertained by ascertaining the whole value of such improvements, and dividing this by the whole number of his brothers and sisters, including himself, who shared as heir-at-law of his mother. Albea v. Griffin, supra; Pitt v. Moore, supra, and the cases there cited. There is no error. Affirmed.