42 S.E. 966 | N.C. | 1902
This action was brought to enforce the collection of a balance due on a contract to pay the purchase money for a tract of land bargained to be sold by the plaintiff to the defendant. The contract was in the nature of a bond for title, properly executed by the plaintiff, but not signed by the defendants, or either of them, or by the lawfully (545) authorized agent of either of them. The statute of frauds was pleaded in bar of any recovery by the plaintiff. The plaintiff offered evidence tending to show that at the time of the execution of the bond for title by the plaintiffs the defendant Atkinson accepted the same, paid $75 in cash of the purchase money, and had it registered; that the plaintiffs surrendered the possession of the premises to the defendants, and that the defendants have been cutting lumber from and building a railroad and houses upon the same; that the defendants are still in possession and have refused to pay the balance of the purchase money although the plaintiffs, in proper time, had tendered a proper deed for the land and premises; and that the defendants have never given notice to the plaintiffs of any intention to abandon the contract or to surrender the possession of the land to the plaintiffs. The evidence was refused by his Honor, and upon intimation by the court that the plaintiffs could not recover they took a nonsuit and appealed.
The question presented for decision is this: Can the vendor who has executed a written contract for the sale of land enforce the contract and compel the vendee, who has partly performed the contract and who has been put in possession of the premises, but who has not himself signed the contract, to pay the purchase money? It is not now an open question. In Rice v. Carter.
In Simms v. Killiam,
In Mizell v. Burnett,
To the like effect are the cases of Wade v. New Bern, (547)
This has not always been the rule in North Carolina. The first case under the statute was that of Ellis v. Ellis,
In Barnes v. Teague,
It does not alter the ease to say that the present contract was in writing and signed by the plaintiff, the vendor; that it was not altogether in parol. It was a parol contract so far as the defendant vendee is concerned, and cannot be enforced against him, he pleading the statute of frauds, although admitting the contract.
In Dunn v. Moore,
In Luton v. Badham,
Error.
Cited: Hall v. Misenheimer,
(549)