Tbe defendant demurred to tbe complaint upon two grounds: First, that there is a defect of parties defendant, since it appears upon tbe face of tbe complaint that tbe action, in part, is directed toward tbe sale of lands descended from C. 'B. Embler to H. L. Embler and E. T. Embler; wbo are necessary to a final determination of tbe controversy; and second, tbat tbe complaint does not state a cause of action against tbe defendant.
Upon reading tbe complaint, we are of opinion tbat tbe demurrer for defect of parties must be sustained, and it is so ordered, 'subject to tbe right of tbe plaintiffs to bring them in.
Tbe demurrer to tbe complaint as not constituting a cause of action is untenable.
In tbe argument here, tbe defendant seeks to sustain bis demurrer in tbat respect upon tbe ground tbat tbe alleged contract upon which tbe trust is grounded was not in writing and was, therefore, void under tbe statute of frauds, G. S., 22-2; further, tbat it must fail for want of consideration, since tbe only consideration supporting. it — -namely, to refrain from bidding at a public auction — is in violation of public policy.
If it be conceded for tbe purpose of discussion and analysis, only, tbat tbe contract upon which tbe trust is grounded is covered by tbe statute of frauds, tbe question of its validity cannot be' raised by demurrer. Contracts required to be in writing, G. S., 22-2, but which are actually in parol, are vulnerable in two respects : They are not valid if tbe person sought to be charged so elects; and parol evidence to establish them cannot be introduced over objection. Procedurally, tbe defense of tbe statute of frauds cannot be taken advantage of by demurrer; Hemmings v. Doss, 125 N. 0., 400, 402, 34 S. E-., 511; Stephens v. Midyette, 161 N. C., 323, If S. E., 423; it can only be raised by answer.' This may be done in either of two ways: Tbe defendant may plead tbe statute, in which case when it develops on the trial tbat tbe contract is in parol, it must be declared invalid; or tbe defendant may enter a general denial, and on trial may object to tbe parol evidence to establish tbe contract, which will be equally fatal to tbe maintenance of tbe action; McCall v. Textile Ind. Inst., 189 N. O., 775, 128 S. E., 349, 353. See, also, Luton v. Badham, 127 N. C., 96, 37 S. E., 143; Winders v. Hill, 144 N. 0., 614, 57 S. E., 456. Compare Ebert v. Disher, 216 N. C., 36, 3 S. E. (2d), 301. ' - •
Moreover, a parol trust of tbe character sought to be established is not within tbe statute, of frauds. Peele v. LeRoy, 222 N. C., 123, 22 S. E. (2d), 244; Brogden v. Gibson, 165 N. C., 16, -80 S. E., 966; Newby v. *816 Realty Go., 182 N. C., 34, 108 S. E., 323; Anderson v. Harrington, 163 N. C., 140, 79 S. E., 426; Riggs v. Swann, 59 N. 0., 118; Shelton v. Shelton, 58 N. 0., 292.
The objection that the alleged contract has no consideration to support it except a forbearance to bid at a public auction sale, which is against public policy, is not well taken. First, it may be questioned whether a parol contract made under the circumstances here alleged requires any consideration. As to the establishment of parol trusts, it is said in Gobi v. Edwards, 117 N. 0., 245, loe. cit. 246, 23 S. E., 241:
“Where it is proved satisfactorily that the purchaser at a judicial sale of land agreed with another previously, in contemplation of or at the time of bidding it off, that he would buy and hold it when bought subject to the right of the latter to repay the purchase money and demand a reconveyance, it has been repeatedly held by this Court that the beneficial interest to which the agreement relates passes with the transmutation of the legal estate, because there is no such requirement in our statute as that contained in 29 Car. II., that declarations of trust shall be manifested and proved by some writing. Shelton v. Shelton, 58 N. C., 292; Pittman v. Pittman, 107 N. C., 159; Gloninger v. Summit, 55 N. C., 513; Gohn v. Chapman, 62 N. C., 94; Hargrave v. King, AO N. C.,. 430; Jones v. Emory, 115 N. 0., 158; Thompson v. Newlin, 38 N. C., 338. But where the grantor by a mere declaration engrafts upon his own deed a trust, the declaration must be neither prior nor subsequent to, but contemporaneous with its execution. Blount v. Washington, 108 N. C., 230; Smiley v. Pearce, 98 N. C., 185.”
C. B. Embler had not acquired the legal title at the time of the alleged agreement with respect thereto. The equitable title to the whole land was in the heirs at law of A. W. Embler, and the parties to the parol contract were co-tenants. The plan upon which they are alleged to have agreed was nothing more than a device by which both the equitable title of all the parties to the agreement, as well as the legal title, which at that time rested in the trustee or mortgagee, could be transmitted, in trust, to one of their number for the benefit of them all. Leflcowiiz v. Silver, 182 N. 0., 339, 344,109 S. E., 56; Kelly v. McNeill, 118 N. 0., 349, 354, 24 S. E., 738. If any consideration was required under the facts of this case, it is sufficiently manifested by the act of the plaintiffs in foregoing their own protection by bidding at the sale. Considering the common interest which all the parties had in the matter, the agreement was not against public policy. Newby v. Really Go., supra, pp. 37, 38. Their interest in the res was at the time unitary, and no public policy would require that they enter a competitive bid at the sale in order to protect it.
For these reasons, the judgment of the court below overruling the demurrer is, in the respects noted,
Modified and affirmed.