14 S.E. 519 | N.C. | 1892
The complaint states that the plaintiff's testator, Joseph Newsom, died in 1886, and that by section 4 of his will he devised to the defendant, John F. Newsom, the tract of land whereon he lived, in Hertford County charged with the sum of $400, with interest from 31 May, 1884, to be paid in a reasonable time after the death of the testator, and that the defendant claims and occupies the same under the will, but has failed and refused to pay the said sum charged upon it after demand by plaintiff. Wherefore, plaintiff demands judgment that the land be sold under order of court to pay said sum, with interest and costs.
The defendant, among other things in his answer, alleges that he is the only son of the testator, and lived with his father from infancy until several years after his majority; that he worked on the farm as a common laborer, etc; that his father, being desirous of compensating him and of starting him in life, made a verbal gift of the land to the defendant and promised to execute to him a sufficient conveyance therefor; that defendant desiring to build, and not having a deed for the land, purchased an adjoining tract and was about to build on it, when his father urged him to build on the land he had given him, saying that defendant would show a lack of confidence in him not to do so, as he had given the land to defendant; that defendant, relying upon said verbal gift, and being influenced by said statements of his father, entered upon the land, erected valuable buildings thereon, etc.; that no conditions were annexed to the gift, and since 1877 the defendant has been in the actual, open, notorious, and adverse possession of the same, claiming it as his own, etc.; that the heirs at law of the testator are necessary parties to the action. Wherefore, defendant demands judgment that plaintiffs recover nothing, and for judgment against them for the sum of $874.38, with interest, etc.
In the plaintiffs' reply they say, among other things, that the (124) indebtedness, if any, as alleged as a counter-claim, became due *89 more than three years before the commencement of the action and is therefore barred by the statute.
The issues submitted, and the responses thereto, were:
1. Did Joseph Newsom, the testator, charge the land with $400, as alleged? Yes.
2. Did defendant refuse to pay the same upon demand made by plaintiff? Yes.
3. What is the actual value of the rents and profits, exclusive of improvements from the time of the probate of the will up to the trial? $85.
4. Did testator make a parol gift of the land, some years prior to his death, to defendant, as alleged in the answer? Yes.
5. If so, did defendant, in consequence thereof and in the testator's lifetime, place valuable improvements on the land; and if so, what is the value of the improvements? $3,000.
6. What was the actual value of the land at the commencement of this suit, exclusive of improvements? $330.
Thereupon the court adjudged that defendant is entitled to a lien on the land for $2,915, and that he is entitled to the possession of the land until said lien is paid; that plaintiffs are entitled to a second lien thereon for $400, with interest, etc. It is further adjudged that the land be sold by commissioners, etc., the sale to be reported to the next term of court. From which plaintiffs appealed.
The last clause of the will is: "I devise to my son, John F. Newsom, the tract of land on which he now resides in fee, subject to this condition, that he pay over to my executors, in a reasonable time after my death, $400, with interest at 6 per cent from 31 May, 1884, the same being an advancement, and shall be a charge on the land (125) herein devised."
"Where a plaintiff declares upon a verbal contract void under the statute of frauds, and the defendant either denies that he made the contract or sets up another and a different agreement, or admits the oral agreement and pleads specially the statute, the plaintiff cannot recover."Browning v. Berry,
The same relief was granted and the same principle was recognized under The Code practice by allowing an equitable counter-claim for improvements to one holding under a verbal agreement for the purchase of land. Daniel v.Crumpler,
The question discussed in McCracken v. McCracken,
There is no direct testimony to show that the defendant elected to take under the will. He was not compelled to elect until he had opportunity to determine on which side his interest would lie. Dunlap v. Ingram,
It does not appear from the statement of the case or the (128) findings of the jury when or how he manifested his purpose to claim compensation for the permanent improvements made by him. But if he deferred to do so till this action was brought, or until the preliminary demand for the amount of the legacy charged upon the land was made, the delay affected no after-acquired right in the land, nor did it tend in any way to prevent the executors or legatees from enforcing their rights under the will. Had he brought his action for betterments, he would have incurred the risk (which the majority of the Court seem to have considered fatal in McCracken v. McCracken, supra) of meeting and overcoming the plea of the statute of frauds offered by parties who were not under that obligation to do equity which is imposed on those who ask it. 3 Pom. Eq. Jur., secs. 1238 to 1243. If the action for betterments had been brought and the act of 1819 had been specially pleaded in bar of recovery, the question so ably discussed in McCracken v. McCracken, supra, would have been again directly brought before us for review. Dunn v. Moore,
The right of the defendant rests on a well established principle of equity which has been recognized by this Court and affirmed by our statute (The Code, sec. 476). Daniel v. Crumpler and Baker v. Carson,supra. It does not appear that the defendant accepted any benefit under the will, or that his conduct was inconsistent with a purpose on his part to await the action of the executors or the devisees, and, (129) when they should move, to set up his claim for betterments and ask to have it declared a lien superior to that of the legacies made a charge upon it. The defendant is neither seeking to enforce the parol promise nor to recover damages for nonperformance; therefore, in any view of the case, he had a right to demand that the executors should not be allowed to bestow as a bounty of the testator the price of the land until the enhanced value imparted by the improvements which the testator induced him to make had been paid for by those claiming under the will, or out of the rents of the land upon which it was a first lien. As the courts of equity, under our former practice, restrained proceedings to acquire possession in such cases, and under the new procedure refused their aid to oust a parol vendee or donee until satisfied in some way as to the securing of such compensation for the occupant, so, upon the same principle, a devisor who, by giving land to his son unconditionally, induced the latter to enhance its value by improvements, may repudiate the agreement in his will; but if the land is to be converted into money under its provisions, the donee must be declared in the decree of sale entitled, in any event, to a first lien for the additional value imparted to the land by permanent improvements placed upon it during his occupancy under the agreement. The Court, it seems, was governed by the principle laid down in Hedgepeth v.Rose, supra, in adjudging that no rent should be allowed until the permissive occupancy terminated, and that the defendant should hold the possession until the sum allowed by the jury for betterments, after deducting the value of rents found in the same way, should be satisfied. But in adjusting the equities upon that plan, there was no provision for ascertaining the value of accruing rents, in case the defendant should remain in possession, and *93 for applying it, as it accrued, in discharge of the balance due him upon the claim which constituted a lien, and to secure which he was to hold the premises. Our case, however, presents entirely a (130) different question from those which the learned judge evidently followed in framing the judgment, and is somewhat analogous to that of Pittv. Moore, supra, in the fact that there was another charge upon the land subjecting it to liability to be sold.
It seems to us just and equitable that the land should be sold by a commissioner under the direction of the court, and upon confirmation of the sale and payment of the amount of the bid should pass to the purchaser, under the deed of the commissioner, discharged of all liens. The defendant can bid up to the full amount of the balance of his claim, after deducting the sum due for rents. If the land should fail to bring more than the amount due him, he will become the owner by virtue of his purchase, if the court confirm his offer, and will occupy precisely the same status as if the testator had ratified his parol agreement by executing a conveyance before his death.
If the land should sell for a sum more than sufficient to discharge the defendant's lien, the excess, after satisfying the costs out of it, should be applied to the payment of the legacies made a charge upon the land by the terms of the will. The plaintiff cannot be prevented by a void agreement from selling, when the equitable right of the defendant can be protected either by allowing him to receive the land or retain the money. The defendant having established his disputed right to betterments, is entitled to recover costs under the statute (The Code, sec. 528). Cook v.Patterson,
The judgment below will be modified in accordance with the principle stated. The appellant must be charged with the costs of the appeal.
Modified and affirmed.
Cited: North v. Bunn,
(131)