Baucom v. First National Bank of Monroe, Inc.

Brogden, J. This is tbe case: Tbe vendors conveyed certain land by warranty deed to tbe vendees and received from tbe latter tbe agreed price. Tbe vendors at tbe time of tbe sale made an oral agreement with tbe vendees that if a certain sum of money theretofore paid by tbe vendors for paving a street or road abutting tbe property, was thereafter refunded by tbe State Highway Commission, in such event said money *828 should belong to the vendees or owners of the land at the time of the refund. The fact status, consequently produces the vital question- of law, and that is: Was the oral agreement with respect to the paving money within the statute of frauds? The plaintiffs objected to all testimony tending to prove the oral agreement as aforesaid, and assigned the admission thereof by the trial judge for error. A correct conclusion with respect to the applicability of the statute of frauds must be reached by determining whether the oral agreement was a land trade or a contract affecting the disposition of money not then in existence, but which the parties hoped would eventually come into existence by act of the General Assembly of North Carolina. Obviously, the land trade was a completed transaction. The parties had agreed upon the purchase price. The deeds were executed and delivered, and the purchase price paid by the vendees and accepted by the vendors. No further act was contemplated by either of the parties with reference to the land. It was a closed transaction. Indeed, the plaintiffs are not attacking the deeds or challenging in any manner the sale of the land. They are suing for money, and that alone. The principle of law applicable to the facts was stated in Michael v. Foil, 100 N. C., 178, 6 S. E., 264, where it is written: “If the contract of sale was made subject to this agreement, as an inducement to the contract, the agreement, though in parol, may be enforced. The agreement did not pass, or purport to pass, any interest in land, and does not fall within the statute of frauds.” See Sprague v. Bond, 108 N. C., 382, 135 S. E., 143; Buie v. Kennedy, 164 N. C., 290, 80 S. E., 445; Newby v. Realty Co., 182 N. C., 34, 108 S. E., 323; Stack v. Stack, 202 N. C., 461, 163 S. E., 589. Moreover, the statute of frauds does not apply to executed contracts, and the land trade disclosed by this appeal was an executed contract. Brinkley v. Brinkley, 128 N. C., 503, 39 S. E., 38; Rogers v. Lumber Co., 154 N. C., 108, 69 S. E., 788; Keith v. Kennedy, 194 N. C., 784, 140 S. E., 721. The plaintiffs rely upon Hall v. Fisher, 126 N. C., 205, 35 S. E., 425. The consideration for the agreement in the Hall case was the procurement of an easement. An easement is in itself an interest in land, and hence the principle announced in that case does not control the present appeal. The plaintiffs insist that the defendants other than the First National Bank of Monroe were interveners, but the record discloses that they were brought into the case by order of court, and hence the principles of law with respect to the interveners is not applicable. McIntosh North Carolina Practice & Procedure, page 246, section 260; Guthrie v. Durham, 168 N. C., 573, 84 S. E., 859. No error.