87 S.E. 986 | N.C. | 1916
This is an action for cancellation of a judgment and to restrain defendants in the meantime form selling thereunder. The plaintiff gave the defendant Harrington a deed for certain timber, reciting therein as the consideration the sum of $1,000; but the complaint alleges that there was, orally the further consideration that Harrington would pay off a judgment which one Brothers and obtained against the plaintiff and which was then pending in the Superior Court, provided that the said judgment or any part thereof was affirmed on appeal. Said judgment was affirmed on appeal, but Harrington, instead of canceling the judgment, caused it to be transferred to himself, and then undertook to sell the plaintiff's land under it. The jury found as a fact that the defendant Harrington verbally agreed, as a part of the consideration, to pay off said judgment of Brothers in addition to the $1,000.
The only question presented is whether the plaintiff can show by parol testimony as a part of the consideration that the defendant Harrington agreed to pay off the said judgment in addition to the $1,000 recited in the deed as the consideration.
In Deaver v. Deaver,
The same proposition is discussed and settled in Barbee v. Barbee,
(134) This contract is not barred by the statute of frauds, which invalidates an oral agreement of suretyship in favor of the creditor. This is an original contract by the defendant to the plaintiff, the debtor, to pay off the debt for a consideration.
No error.
Cited: Whedbee v. Ruffin,