Ellis v. Ellis, 16 N.C. 341, 1 Dev. Eq. 341 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 341, 1 Dev. Eq. 341

Lewis Ellis v. William Ellis.

From Edgecomb.

Where the Plaintiff'seeks specific performance of an agreement ft® the sale of lands, and the Defendant denies the contract as alleged and relies upon the statute, (1819, ch. 1016.) parol evidence can» not be received, even upon the ground of part performance, to shew the contract

Whether if the contract so partly performed were admitted by the answer, the execution of it could be decreed sine® the statute. Qu f

This cause came a .second time before (he Court, upon the petition of the Defendant to rehear the interlocutory decree made at June Term, 1828. The case as then reported is found in this volume, (ante 180,) and it is only necessary to state further, that by the answer of the Defendant, the contract as alleged by the, Plaintiff, was denied; but the Defendant admitted he had contracted to sell to the Plaintiff, and averred the. terms of the contract to be, that the Plaintiff should give a note of Stanton’s with good security for 55700, his own notes for the residue, and a deed of trust upon the land to secure the payment of the purchase money. Upon this contract the answer averred that the Plaintiff was led into possession, and (he Defendant submitted to perform the contract so stated by him, and pleaded the act of 1819, ch. 1016, in bar of relief upon the contract alleged by the Plaintiff and denied by the answer.

Proofs had been taken before the hearing, and the contract resting entirely in parol, there was great diversity in the testimony of the different witnesses.

Upon the petition for re-hearing, the case was very elaborately discussed by Gaston and Badger, in support of the petition, and by Hogg, in support of the decree, hut the Reporter is unable to present to the profession a full view of the argument, and is unwilling to attempt an abridgment.

Hall, Judge.

— Whether, if the contract, as set forth by the Complainant, was admitted by the Defendant, and the Plaintiff had taken possession of the land in consequence thereof, such contract ought to be carried into effect since the passage of our statute of frauds, I give no opinion.

The Plaintiff in this case sets forth one contract which the Defendant denies, and sets forth another contract, widely different from it, both by parol — and it is a question, whether either of them was understandingly entered into by the parties. To go into testimony to ascertain whether any, and, what contract the parties have entered into, would be laying aside the act of Assembly altogether ami sapping its usefulness. Indeed if the evidence pee-ponderated in favor of the Plaintiff, as perhaps it does, the enquiry would be equally improper. I am therefore of opinion, that the decree should be reversed, so far as it ordered the execution of the contract, because I think the circumstance of the Plaintiff’s taking possession of the land does not obviate the objection and impropriety of going into an inquiry, to ascertain what the contract really was.

Per Curiam.

— Let the decree complained of be reversed, and let an account be taken by the Clerk of the costs and damages sustained by the Plaintiff in consequence of the Defendant’s suing him at law and turning him out of possession of the lands mentioned in the hill, and let the cause be retained for further directions upon the coming in of the report.