Price v. Harrington, 171 N.C. 132 (1916)

March 8, 1916 · Supreme Court of North Carolina

171 N.C. 132

J. B. PRICE v. W. H. HARRINGTON et al.

(Filed 8 March, 1916.)

1. Deeds and Conveyances — Consideration—Parol Evidence.

While the recited consideration, in a deed to lands may not he contradicted so as to impair the validity of the conveyance, it may be varied by parol evidence as a receipt of the amount stated; and when such deed recites the consideration to be a certain sum, it may be shown by parol that the conveyance was made upon the further consideration that the grantee should satisfy an outstanding judgment against the mortgagor, so as to prevent him from taking an assignment thereof for his own benefit and thereunder selling the mortgagor’s lands.

2. Same — Statute of Frauds.

A petrol agreement in further consideration of that stated in a deed, that the mortgagee should pay off a judgment against the mortgagor, does not fall within the meaning of the statute of frauds.

Appeal by defendants from Bond, J., at October Term, 1915, of CRAVEN.

B. E. Henderson for plaintiff.

B. L. Ward for defendants.

Clark, C. J.

This is an action for cancellation of a judgment and ’to restrain defendants in tbe meantime from selling thereunder. Tbe plaintiff gave tbe defendant Harrington a deed for certain timber, reciting therein as tbe consideration tbe sum of $1,000; but tbe complaint alleges that there was, orally, tbe further consideration that Harrington would pay off a judgment which one Brothers bad obtained against tbe plaintiff and which was then pending in tbe Superior Court, provided that tbe said judgment or any part thereof wa.s 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. Tbe jury found as a fact that tbe defendant Harrington verbally agreed, as a part of tbe consideration, to pay off said judgment of Brothers in addition to tbe $1,000.

Tbe only question presented is whether tbe plaintiff can show by parol testimony as a part of tbe consideration that the defendant Harrington agreed to pay off tbe said judgment in addition to tbe $1,000 recited in tbe deed as tbe consideration.

In Deaver v. Deaver, 137 N. C., 243, it is said: “Where tbe payment of tbe consideration is necessary to sustain tbe validity of tbe deed or tbe contract in question, tbe acknowledgment of payment is contractual in its nature and cannot be contradicted by parol proof; but where it is to be treated as a receipt for money, it is only prima facie evidence of tbe payment, and tbe fact that there is no payment, or that tbe consideration was other than that expressed in tbe deed, may be shown by oral evidence.” That ease cites 3 Washburn Real Property (5 Ed,), 614, as follows: “Although it is always competent to contradict tbe recital in tbe deed as to tbe amount paid, in an action involving tbe recovery of tbe purchase money or as to tbe measure of damages, in an action upon tbe covenants in tbe deed, it is not competent to contradict tbe acknowledgment of a consideration paid in order to affect tbe validity of tbe deed in creating or passing a title to tbe estate thereby granted.” This is quoted and approved, Kendrick v. Ins. Co., 124 N. C., 315; 70 Am. St., 592.

Tbe same proposition is discussed and settled in Barbee v. Barbee, 108 N. C., 581, and tbe cases therein cited. These cases have been repeatedly cited since, among tbe latest being Jones v. Jones, 164 N. C., 324.

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.