70 S.E. 906 | N.C. | 1911
CLARK, C. J., and WALKER, J., concurring; BROWN, J., concurring in the concurring opinion of WALKER, J. This is a motion by defendant, under section 579 of the Revisal, to enter satisfaction of a judgment rendered in favor of the plaintiff at August Term, 1907, of the Superior Court of Duplin County.
The defendant offered affidavits to prove that on 13 April, 1908, he sold to the plaintiff a lot in Warsaw, at the price of $1,600, on condition that said judgment should be satisfied as a part of the purchase price; that he had tendered a deed to the plaintiff pursuant to the contract of sale, which the plaintiff refused to accept.
The plaintiff admitted that he had entered into a contract of purchase, alleged that the same was in parol, and contended that the deed tendered did not embrace all the land in the contract.
It was admitted that the contract was in parol and that the plaintiff contended that the deed tendered was not in accordance with the agreement.
His Honor dismissed the motion, and the defendant excepted and appealed. This seems to be an ingenious effort upon the part of counsel for defendant to enforce a parol contract in regard to land. The section of the Revisal (579) under which the motion is made was intended to give the judgment debtor a speedy and inexpensive remedy when he had made payments which the creditor refused to enter on the judgment. The procedure under the motion is clearly stated in the statute.
We do not think it was intended to embrace a controversy like this, growing out of an independent contract, which may be the subject of *431 another action. The statute says the remedy by motion may be had "when any payment has been made on any judgment."
The defendant has paid nothing. On his own showing, he has (546) entered into an entire contract, void under the statute of frauds, and the plaintiff claims that he is not willing to perform this.
We agree with his Honor that these controversies can not be settled in this motion.
Affirmed.
