16 N.C. 341 | N.C. | 1829
Proofs had been taken before the hearing, and the contract resting entirely in parol, there was great diversity in the testimony of the different witnesses. Whether if the contract as set forth by the complainant was admitted by the defendant, and the plaintiff had taken possession of the land in consequence thereof, such contract ought to be carried into effect since the passage of our statute of frauds, I give no opinion.
The plaintiff in this case sets forth one contract which the defendant denies, and sets forth another contract, widely different from it, both by parol; and it is a question whether either of them was understandingly entered into by the parties. To go into testimony to ascertain whether any and what contract the parties have entered into would be laying aside the act of Assembly altogether, and sapping its usefulness. Indeed, if the evidence preponderated in favor of the (343) plaintiff, as perhaps it does, the inquiry would be equally improper. I am therefore of opinion that the decree should be reversed, so *190 far as it ordered the execution of the contract, because I think the circumstances of the plaintiffs taking possession of the land does not obviate the objection and impropriety of going into an inquiry to ascertain what the contract really was.
PER CURIAM. Let the decree complained of be reversed, and let an account be taken by the clerk of the costs and damages sustained by the plaintiff in consequence of the defendant's suing him at law and turning him out of possession of the lands mentioned in the bill, and let the cause be retained for further directions upon the coming in of the report.
Cited: S. c., ante, 180, and post, 398; Dunn v. Moore,
