97 S.E. 750 | N.C. | 1919
The action is to enforce specific performance of a contract to sell land on the following paper-writing signed by defendant:
BARNESVILLE, N.C. 10/18/1917.
Received on account of trade on home place, $100.00, one hundred dollars. From D. B. Lewis. J. P. MURRAY.
Witness: W. C. WALTERS.
There was accompanying evidence on the part of plaintiff tending to show that plaintiff, on 18 October, 1917, bought the place on which defendant lived, and where he had lived for fifteen years past, for $1,600 and paid him $100 on the purchase price and, taking the receipt as above set out, had been ready and able to pay balance of amount, and told defendant this, who said he would have the deed drawn in a few days, but later had failed and refused to comply further. There was further evidence on the part of plaintiff tending to identify the place, and that it was known and called the "Home Place." There was also evidence to the effect that while defendant owned two other tracts of land in the county (a 50- and a 70-acre tract), he had never lived on either, and this place was a piece of land in Barnesville, Robeson County, North Carolina, bought by defendant of R. R. Barnes, and was the home place as referred to and described in the deed.
Defendant in his answer denied any obligation to convey the property and insisted that there was no contract in writing, as required by the statute, and alleged a tender and refusal of the one hundred dollars.
At the close of the testimony, the court being of opinion that no sufficient contract or memorandum had been shown, on (19) motion, there was judgment of nonsuit, and plaintiff excepted and appealed. The portion of our statute of frauds applicable to executory contracts to sell and convey land (Revisal, sec. 976) provides that these and certain other contracts specified therein shall be void unless said contract, or some note or memorandum thereof, be put in writing *20 and signed by the party to be charged therewith or by some other person by him thereto lawfully authorized.
In various decisions construing the statute, it is held that the "party to be charged" is the one against whom relief is sought; and if the contract is sufficient to bind him, he can be proceeded against though the other could not be held, because as to him the statute is not sufficiently complied with. As expressed in Mizell, Jr. v. Burnett,
Again, it is held that where the action is against the vendor, it is not required, for the validity of the contract, that the consideration appear in the writing. This position, a departure from the English decisions on the subject, was approved and sustained in a learned and notable opinion byChief Justice Ruffin in Miller v. Irvine,
Applying these principles, we are of opinion that the paper-writing declared on is in full compliance with the statutory requirements. The party to be charged in this instance being the vendor, the consideration, as we have seen, need not be stated. The words clearly import that there was a contract for the sale of the vendor's home place to plaintiff. This is not only a permissible and acceptable definition of the word "trade" in a transaction of this character (May v. Sloan,
In this last citation, the general principle is correctly stated as follows: "A contract for the sale of real property must contain a description of the land to be sold, but it is not necessary that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. The doctrine `Id certum est quod certumriddi potest' applies, and if the designation is so definite that the purchaser knows exactly what he is buying and the seller knows what he is getting, and the land is so described that the court can, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough."
In Simmons v. Spruill the instrument designating the land as that "whereon the vendor resides," or the A.B. farm, was held to be sufficient. And in Farmer v. Batts the Court, giving a number of illustrations where the contract was enforced, refers to Hurly v. Brown,
In the subsequent case of Mead v. Parker,
"Every valid contract," says Mr. Fry in his work on specific performance, sec. 209, "must contain a description of the subject-matter; but it is not necessary it should be so described as to admit of no doubt what it is, for the identity of the actual thing and the thing described may be shown by extrinsic evidence." To the same effect, Pomeroy on Contracts, sec. 90, note.
In Burns v. Starr,
There is error in the judgment of nonsuit, and this will be certified that the case be submitted to the jury on appropriate issues.
Error.
Cited: Norton v. Smith,
(22)