Taylor v. . Hunt

Clark, J.: The principal point at -issue in this case is-discussed and settled in Moffitt v. Maness, 102 N. C., 457. The defense set up is an attempt to contradict and vary the terms of a written contract of lease, by showing a. contemporaneous parol agreement that a certairi debt therein secured should be indulged and that if i't was not the lease was null and void. Such verbal agreement, if made, might be a defense to an independent action to collect the debt but would not nullify the lease There is no allegation that such stipulation was left out of the lease by fraud, mutual mistake or accident and no prayer to reform the instrument on such ground. While it is true that where a contract is not required to be in writing if the entire contract is not reduced to writing, the other part may be proven by parol (Nissen v. Mining Co., 104 N. C., 309), this has never been permitted to nullify the settled *172 rule that such oral evidence must not contradict or vary the part that is in writing. If the defendants in the present case are merely seeking to show that it was agreed by parol that if a certain debt secured by the lease was to be indulged, and that it has not been, this does not, as they insist, nullify the lease, but was a defense to have been used against the action brought on the debt. If the defendants are seeking to show a verbal agreement that if the debt was not indulged the lease was to be void and ineffectual, this would be to contradict a written agreement by a parol defense. The first two issues therefore were improperly submitted. Parker v. Morrill, 98 N. C., 232, and cases cited; Martin v. McNeely, 101 N. C., 634; Bank v. McElwee, 104 N. C., 305. The next two issues were immaterial, for as those debts were secured by the lease, it could make no difference whether or not at the date of the lease the defendant might have successfully pleaded the Statute of Limitation if action had been brought. If they were then barred that did not prevent an honest debtor from securing them, and indeed ■such security is a new promise (Oode, Sec. 172), at least to the extent of the property conveyed. Besides, the security, when not barred, is enforeible though action on the -debt is barred. Capehart v. Dettrick, 91 N. C., 344; Long v. Miller, 93 N. C., 227; Arrington v. Rowland, 97 N. C., 127; Overman v. Jackson, 104 N. C., 4; Jenkins v. Wilkinson, 113 N. C., 532. The fifth and last issue is immaterial at present as the •debts secured have not been paid. When that has been ■done, if the promise to reconvey is not executed after demand made, action can then be brought to prove the promise and secure specific performance. The Court will not now anticipate questions which may arise in that action. *173 This disposes of the first six exceptions, and it is not necessary to consider the others. It may be said, however,, in reference to the 7th, 8th, and 10th exceptions that an agency cannot be proven by the declarations of the alleged agent. Francis v. Edwards, 77 N. C., 271; Gilbert v. James, 86 N. C., 214; Williams v. Williamson, 28 N. C., 281; Grandy v. Ferebee, 68 N. C., 356; Johnson v. Prairie, 91 N. C., 159. The mere fact that J. H. Taylor was made trustee by the terms of the lease to collect rents for the-creditors named and apply the same to their debts did not make him the agent of the creditors to bind them by oral declarations made at the time, and it was erroneous to admit snch declaration to prove that he was at that time acting as their agent. Agency must be proved aliunde- the declarations of the alleged agent. Error.