Henry v. . Hilliard

AlleN, J., after stating the case. A single question is presented by this appeal, and that is, Can tbe vendee, under a parol contract in regard to land, after payment of tbe purchase price, compel tbe execution of a deed to him, when tbe statute of frauds is not pleaded, the contract is not denied, and there is no objection to the evidence? Tbe authorities seem to be uniform tbat tbe vendee is entitled to a conveyance under such circumstances. In Oye., vol. 20, page 312, note 4, tbe decisions of tbe highest courts of sixteen States are cited in support of tbe text, tbat, “If be (tbe vendor) admits tbe making of tbe contract, and fails to claim tbe benefit of tbe statute, or to demur, be will be taken to have waived it.” Browne on Stat. Frauds, sec. 135, says: “As tbe statute of frauds affects only tbe remedy upon the contract, giving the party sought to be charged upon it a defense to an action for tbat purpose, if tbe requirements of tbe statute be not fulfilled, it is obvious tbat be may waive such protection, or rather, tbat, except as be undertakes to avail himself of such protection, tbe contract is perfectly good against him.” *378 Also, Story Eq. PL, sec. 763 : “It seems now understood that this plea extends to the discovery of the parol agreement, as well as to the performance of it; although, it has been said that the defendant is compellable by answer, or by plea, to admit or to deny the parol agreement, stated in the bill. But this seems utterly nugatory, for it is now well settled that if the defendant should, by his answer, admit the parol agreement, and should insist upon the benefit of the statute, he will be fully entitled to it, notwithstanding such admission. But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby renounced the benefit of the statute.” The decisions of this Court announce the same doctrine. In Loughran v. Giles, 110 N. C., 426, the 'Court says: “The statute of frauds (said Justice Ruffin in McRacken v. McRacken, 88 N. C., 276) was intended to ‘close the door upon temptations to commit perjury and the assertion of feigned titles to property.’ The evil intended to be guarded against in the enactment of the statute was the attempt to enforce pretended verbal agreements by resorting to perjury, and though it became necessary in attaining this end to put it in the power of a party to avoid, at his election, his own verbal promise to convey land, the statute was not construed as a declaration that all such contracts not in writing and signed by the party to be charged were to be treated, ipso facto, as null and void. Wilkie v. Womble, 90 N. C., 254; Green v. R. R., 77 N. C., 95; Davis v. Inscoe, 84 N. C., 396. “ ‘A verbal contract for the sale of land, tenements, or hereditaments, or any interest in or concerning them (said the Court in Thigpen v. Staton, 104 N. C., 40), is good between the parties to it, and will be enforced if they agree upon its terms, and the party to be charged, does not plead the statute.’ ’’ The cases of Syme v. Smith, 92 N. C., 338; Thigpen v. Staton, 104 N. C., 40, and Hall v. Lewis, 118 N. C., 510, are to the same effect. The rule does not, however, apply except when there is no denial of the contract, and the statute is not pleaded. *379 Tbe party to be charged may simply deny tbe contract alleged, or deny it and set up a different contract, and avail bimself of tbe statute, without pleading it-, by objecting to tbe evidence; or be may admit tbe contract and plead tbe statute; and in either case tbe contract cannot be enforced. Browning v. Berry, 107 N. C., 235; Jordan v. Furnace Co., 126 N. C., 147; Winders v. Hill, 144 N. C., 617. We are of tbe opinion there was error in tbe ruling of tbe court on tbe record, as it is presented to us, and that tbe appellant is entitled to- a conveyance as prayed. Eeversed.