Ollis v. . Ricker

Connor, J. On the allegations of his complaint, the plaintiff was the owner of an equity in the lands described therein, at the time he and defendants entered into the contract alleged in the complaint. R. N. Huslrins, who had executed the mortgage to the Avery County Bank, under which the lands were advertised for sale, owned the equity of redemption in said lands, but by reason of his agreement with the plaintiff at the time he purchased the lands at the sale under the mortgage executed by the plaintiff, he held said equity of redemption in trust for the plaintiff. See Peterson v. Taylor, post, 673. The plaintiff did not convey the lands to R. N. Huskins. For that reason Gaylord v. Gaylord, 150 N. C., 222, 63 S. E., 1028, has no application to this case. This aspect of the ease is controlled by the principle on which Avery v. Stewart, 136 N. C., 426, 48 S. E., 775, was decided. See, also, McNinch v. Trust Co., 183 N. C., 33, 110 S. E., 663. Conceding that the contract between the plaintiff and the defendants, as alleged in the complaint, is subject to the statute of frauds, there was error in sustaining the demurrer. In Real Estate Co. v. Fowler, 191 N. C., 616, 132 S. E., 575, it is said: “Verbal contracts relating to the sale and conveyance of lands are not void, but voidable, and the statute of frauds must be pleaded. It cannot be set up by demurrer.” The judgment dismissing the action is Reversed.