Sprague v. . Bond, 108 N.C. 382

Shepherd, J.:

We entirely concur with the rulings of his Honor that the plaintiff could not have established any trust in the lands conveyed by him to the defendant. This is conceded by the plaintiff’s counsel, and it is, therefore, needless to enter into the consideration of that question.

We are of opinion, however, that upon the pleadings and evidence, the plaintiff is entitled to an account of the proceeds of the sale of the land in order to ascertain the amount due him as the consideration of the conveyance, and that he may recover the same.

The enforcement of the alleged agreement, after the sale of the land, does not in any respect impinge upon the terms of the conveyance, but relates entirely to the payment of the consideration. It is true that the plaintiff could not have compelled the defendant to execute her agreement to sell the land, as there was no enforceable trust, and the agreement was within the statute of frauds, but this part of the agreement has been voluntarily performed, and the other part, not being within the statute, may now be enforced. The principle is illustrated by the following cases:

In Hess v. Fox, 10 Wend., 436, the plaintiff conveyed his equity of redemption to his mortgagee in consideration of the actual cancellation and discharge of the mortgage indebtedness and a promise to sell the land and pay the surplus, if any, to the plaintiff. The land was sold, and there being a surplus, the plaintiff recovered it in an action of assump-sit. Savage, C. J., after stating that the agreement to sell could not have been enforced, said that “ no question can arise as to the validity of the agreement to sell, that was performed, and the remaining part was to pay over money supported by the consideration of land conveyed to the promisor.”

In Massey v. Holland, 3 Ired., 197, the plaintiff being indebted to the defendant, conveyed certain lands to him upon the understanding that he should sell the same, satisfy his claim and pay the surplus to the plaintiff. The land was sold and the plaintiff recovered the surplus in an action of assumpsit. The defendant objected to the introduction of parol testimony to prove the agreement, but it was held that it was not within the statute, the Court remarking that “the plaintiff has not brought his action upon the agreement. He treats the agreement as having been executed,, and claims the money which in consequence of that agreement became due to him.” See also Browne on Statute of Frauds, 117.

Still more directly in point is the case of Michael v. Foil, 100 N. C., 178. There “the contract for the sale of the land was in writing; the land itself was sold, but the agreement that if the mineral interest in the land should be sold during the life-time of the plaintiff he should have one-half of it, was not put in the writing.”

The Court said: “If the contract of sale was made subject to this agreement, as an inducement to the contract, the agreement, though in parol, may be enforced. The agreement did not pass or purport to pass any interest in the land, and does not fall within the statute of frauds.”

In addition to the authorities cited in the opinion in the foregoing case, we will add the case of Miller v. Kendig, 55 Iowa, 174, in which it was held that “ a parol agreement by the grantee of land, that in case he sells the land for more than the price paid, one-half of the excess shall be paid to the grantor, does not create an interest in real estate within the statute of frauds.” The Court, after stating that the agreement to sell could not be enforced, proceeds as follows: “The agreement entered into between the parties pertained merely to the purchase price. It was to be at least $ 1,650, and in a certain contingency more than that. The plaintiff shows that the contingency has happened.” It was held that he was entitled to recover.

In Trobridge v. Weatherbee, 11 Allen. (Mass.) Rep., 361, it is said that " a parol promise to pay to another a portion of the profits made by a promisor on the purchase and sale of real estate is not within the statute of frauds and may be proved by parol.” See also Mehagan v. Mead, 63 N. H., 130; Sherrill v. Hagan, 92 N. C., 345.

We have examined with great care the cases cited by the defendant’s counsel, but in our opinion they do not shake the authority of Michael v. Foil, supra, sustained as it is by the general current of judicial decision. The principle there laid down is applicable to the present case. The plaintiff here had the legal title to the land and conveyed it upon an apparently nominal consideration to the defendant. He testifies that the inducement to the making of such conveyance was the agreement that the defendant should sell the land, and when sold he was to be paid for his services and expenditures, and, after deducting the amount advanced by the defendant, he was to have one-half of the proceeds of the sale. We think that if the plaintiff can establish such an agreement he will be entitled to recover.

As the land was not sold until 1890, the plaintiff's cause of action did not accrue until then, and is, therefore, not barred by the statute of limitations. This defence was not seriously urged before us.

For the reasons given, we think there should be a new trial.

Error.

Case Details

Case Name: Sprague v. . Bond

Court Name: Supreme Court of North Carolina

Date Published: Feb 5, 1891

Citations: 108 N.C. 382; 13 S.E. 143

Court Abbreviation: N.C.