Dunn v. Brewer, 228 N.C. 43 (1947)

Oct. 8, 1947 · Supreme Court of North Carolina

228 N.C. 43

ENOCH DUNN v. LUCINDA BREWER et al.

(Filed 8 October, 1947.)

1. Wills § 4: Frauds, Statute of § 10—

A parol contract to devise realty in consideration of personal services rendered and to be rendered, is unenforceable against a plea of tbe statute of frauds.

2. Executors and Administrator's § 15d—

Recovery cannot be bad upon assumpsit or quantum meruit for personal services rendered in reliance upon an oral contract to devise wben tbe action is instituted more than three years after tbe death of the promissor and tbe statute of limitations is pleaded in bar. G. S., 1-52.

Appeal by plaintiff from Carr, J., at March Term, 1947, of Chatham.

Civil action to recover for services rendered by plaintiff to E. B. Brewer and wife, Lucinda Brewer, under oral contract made in 1930 whereby plaintiff was to move on to tbe lands of E. B. Brewer, provide for him and bis wife so long as they should live, and at bis death, all tbe property of E. B. Brewer, was to become tbe property of tbe plaintiff in satisfaction of services rendered and to be rendered.

It is alleged and in evidence that plaintiff bas performed bis part of tbe contract; that E. B. Brewer died in 1936, devising bis property to bis wife for her life, remainder to Willie A. Phillips, and without leaving plaintiff any of bis property; that plaintiff bas continued to perform bis part of tbe contract. Wherefore, plaintiff brings tbis action to protect bis rights and to subject tbe lands of tbe deceased to tbe payment and satisfaction of bis claim. Summons was issued herein on 2 May, 1946.

Tbe defendants answered, denied tbe allegations of contract as set out in tbe complaint, and pleaded tbe statute of frauds and tbe statutes of limitation.

At tbe March Term, 1947, Cbatbam Superior Court, tbe death of Lucinda Brewer was suggested and her administrator was brought in as a party defendant.

Plaintiff was allowed recovery against the estate of Lucinda Brewer for services rendered during the three years next immediately preceding her death, but he was not allowed to take anything against the estate of E. B. Brewer or against the defendant, Willie A. Phillips.

From the judgment entered, the plaintiff appeals, assigning errors.

H. F. Sea/well for plaintiff, appellant.

Wade Barber for defendants, appellees. ■

Stacy, O. J.

The appeal poses the question whether the plaintiff is entitled to judgment against the estate of E. B. Brewer. The trial court answered in the negative, and we approve. Plaintiff is discontent with his limited recovery against the estate of Lucinda Brewer.

Recovery was properly denied on plaintiff’s alleged contract as against the estate of E. B. Brewer, because it rests in parol and is not subject to specific enforcement. Coley v. Dalrymple, 225 N. C., 67, 33 S. E. (2d), 477; Neal v. Trust Co., 224 N. C., 103, 29 S. E. (2d), 206; Daughtry v. Daughtry, 223 N. C., 528, 27 S. E. (2d), 446; Price v. Askins, 212 N. C., 583, 194 S. E., 284.

Recovery was likewise properly denied as against the estate of E. B. Brewer on assumpsit or quantum meruit, since the action was instituted more than nine years after the right accrued and the defendants have interposed a plea of the three-years statute of limitations. G. S., 1-52; Wood v. Wood, 186 N. C., 559, 120 S. E., 194; McCurry v. Purgason, 170 N. C., 463, 87 S. E., 244, Ann. Cas. 1918-A, 907; Miller v. Lash, 85 N. C., 52, 39 Am. Rep., 678; McIntosh on Procedure, 161.

There was no error in disallowing the plaintiff’s claim as against the estate of E. B. Brewer.

Affirmed.