Chambers v. . Byers
199 S.E. 398
N.C.
1938
Check Treatment
CiARKSON, J.

The question involved: Should the plaintiff’s motion to nonsuit the defendant Lucy Bowers Knight and the judgment entered thereupon be overruled? We think so.

The decision of this controversy depends upon the construction of Exhibit “A,” supra. It will be noted that the paper writing says: “Article of Agreement between Charles Madison Bowers of the (1st) first part and John and Laura Isabelle Tucker of the (2nd) second part.” This indicates that there was no intention that the paper writing be a will. N. C. Code, 1935 (Michie), section 4131.

The agreement was not intended as an “Adoption of minors,” under chapter 2, N. 0. Code, supra.

*377 In Truelove v. Parker, 191 N. C., 430, upon tbe record in this case, it is held that neither the father nor the mother of the child was a party to the proceeding within the contemplation of the statute, and that the clerk had no jurisdiction of their person, (consequently) he had no jurisdiction of the subject matter. Since the decision in the Truelove case, sufra, see change Public Laws 1935, ch. 243.

The parties to the agreement in this case did nothing as required by the Adoption Statute. Persons sui juris have a right to contract if it is not contrary to law or public policy. The agreement was in writing, therefore it did not come within the statute of frauds. N. 0. Code, supra, sec. 988. It is well settled that the intention of the parties to a contract controls its interpretation. In ascertaining and effectuating the intent of the parties, the language used, subject matter and the purpose designed may be considered.

In the case at bar the father of Lucy Bowers Knight contracted and agreed with John R. Tucker in 1885, that he would take this minor child of three years, nine months and sixteen days and provide for her all of her temporal wants and to make her his sole and only heir to all that he died possessed of, and upon this agreement the father, C. M. Bowers, agreed that he should not induce, or cause to be induced, the said Lucy Bowers to leave the lawful custody of the said John and Isabelle Tucker, and in so far as this case is concerned, there is no evidence but that the said C. M. Bowers carried out completely his part of the agreement, and that the said Lucy Bowers carried out her part of the agreement. John R. Tucker in his lifetime never attempted to repudiate this written contract to devise all of his property to Lucy Bowers (Knight)— he just neglected to carry out his contract as to making a will in her favor.

In Stockard v. Warren, 175 N. C., 283 (285), it is written: “ ‘There can be no question that a contract upon a sufficient consideration to devise lands is valid and may be enforced in a court of equity, the decree being so drawn as to declare the parties to whom the land is devised, or, in the event of a failure to devise, the heirs at law to hold such lands in trust for the persons to whom the testator had contracted to devise them.’ Price v. Price, 133 N. C., 503. To the same purport, East v. Dolihite, 72 N. C., 566; Earnhardt v. Clement, 137 N. C., 94. ‘It is settled by a line of authorities which are practically uniform, that while a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will can not be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent, and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it by seizing the property which is the subject matter of *378 the agreement, and fastening a trust on it in favor of tbe person to whom the decedent agreed to give it by his will.’ Naylor v. Shelton, Am. Ann. Cases, 1914, A. 394.”

We think the agreement definite and certain enough for a court of equity to decree specific performance. Hager v. Whitener, 204 N. C., 747. In Lipe v. Trust Co., 207 N. C., 794 (795-6), citing numerous authorities, is the following: “It is established by the decisions in this jurisdiction: That when services are performed under an oral agreement, express or implied, that compensation is to be provided therefor in the will of the party receiving the benefit, and no such provision is made, an action will lie to recover for the breach, or to prevent an unjust enrichment, if need be, on the part of the recipient of such services.”

In Sharkey v. McDermott, 91 Mo., 647, there was a contract to adopt a child and to make it an heir. The child lived with the parties, from the time it was four, for twenty years. Upon the death of the parties, the contract was upheld in favor of the child against the collateral heirs. Effect was given the contract, not by completing the. adoption, but by declaring the collateral heirs trustees and requiring them to convey' in accordance with the contract. As was there pointed out, to give effect to such a contract is not making a will for a deceased party; it is merely making “effectual what the parties have themselves agreed upon.”

In Chehak v. Battles, Iowa—1907, 110 N. W., 330, another contract of adoption was enforced, effect being given to it in the following words : “So, an agreement of adoption may fall short of meeting the statutory requirements and yet be a valid and enforceable contract. The agreement in the case at bar stipulated that plaintiff should 'acquire all the rights of inheritance by law.’ This was equivalent to saying she should share in their estate as though their own child, but not as such.” Likewise, in Kofka v. Rosicky, Nebr.—1894, 59 N. W., 788, a contract of adoption was given effect as to the disposition of property. To the same effect see Hickox v. Johnson, Kansas—1923, 213 Pac., 1060, and the note thereto in 27 A. L. R., at p. 1325; also 1 C. J., 1379, s. 27. Grantham v. Grantham, 205 N. C., 363, is distinguishable; there the contract was not in writing. Hager v. Whitener, 204 N. C., 747, supports the view stated in the instant case.

In Thayer v. Thayer, 189 N. C., 502 (508), is the following: “The suit is properly brought. We said in Parlier v. Miller, 186 N. C., p. 503: ‘We deduce from the authorities that it is well settled that where a contract between two parties is made for the benefit of a third, the latter may sue thereon and recover, although not strictly a privy to the contract.’ Bank v. Assurance Co., 188 N. C., p. 753.” Conley v. Cabe, 198 N. C., 298; N. C. Prac. & Proc. in Civil Cases (McIntosh), p. 193.

In the statement of the case on appeal is the following: “Lucy Bowers Knight filed an answer setting up that she was entitled to the land in *379 fee simple, subject to tbe debts of John R. Tucker, deceased.” Tbe plaintiff is empowered to sell tbe land to pay tbe debts of Jobn R. Tucker. N. C. Code, supra, sec. 74.

Tbe answer of tbe defendant Lucy Bowers Knigbt raises tbe issue of equitable sole seizin which must be determined before there can be an order of sale. If tbe facts are found to be as she alleges, she is entitled to a judgment decreeing specific performance. Thereupon, if she so elects, she may pay to tbe administrator a sum sufficient to discharge tbe debts of tbe estate and tbe costs of administration and thus discharge tbe right of tbe administrator to sell tbe lands to make assets. •

For tbe reasons given, tbe judgment of tbe court below is

Reversed.