Simms v. Killian, 34 N.C. 252, 12 Ired. 252 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 252, 12 Ired. 252

JACOB SIMMS vs. JOHN KILLIAN.

A. contracted to purchase from B. a tract of land at a stipulated price, and gave his written obligation to that effect. Afterwards, C., by parol, agreed to purchase A.’s interest in the contract, and A. by endorsement on his obligation directed B. to convey to C. Held, that the contract between A. and C. was void by the statute of frauds, and, of course, no action could be sustained on it.

Appeal from the Superior Court of Law of Haywood County, Spring Term 1851, his Honor Judge Settle presiding.

■ This is assumpsit, in which the plaintiff sought to recover the sum of $200, part of the price, which the intestate promised to pay the plaintiff for his iitterest in a tract of land. On the general issue, the facts were these: The plaintiff contracted with one Wilde for the purchase of the land at $600, and paid him $210, and took' his obligation to convey to him upon the payment of the residue of the purchase money<■ Afterwards Jones, the defendant’s, intestate, contracted orally with the plaintiff for the purchase of his interest in the land at $>800; whereof he promised the plaintiff to pay $590 to Wikle in full of the balance due him, and to pay the plaintiff the remaining $210. Thereupon the plaintiff signed a written memorandum on Wikle’s obligation, that Jones was authorised to take a deed from Wikle in his own name, and delivered the paper to Jones ; who afterwards paid the purchase money io Wikle and got a deed from him, and also paid the plaintiff the sum of $10 in part of the $210, but died without making any farther payment. The defendant insisted, that the action would not lie, because the agreement was not in writing; and the presiding Judge was of that opinion and non-suited the plaintiff, and he appealed.

J. W. Woodfin, for the plaintiff.

N. W. Woodfin, for the defendant.

Ruffin, C. J.

The Court concurs in the opinion of his Honor, which is in accordance with the case of Rice v. Carter, decided here a year ago. The contract concerns the sale of an interest in land, and by the statute of frauds a party to it cannot be charged therewith, unless it be in writing and signed by the party thus sought to be charged. It was argued at-the bar, that the policy of the act was to protect owners of real estate from being deprived of it without written evidence under their own hand, and that a promise to pay money for land is not within the mischief. But the danger seems as great, that a purchase at an ex-horbitant price may by perjury be imposed on one, who did not contract for it, as that by similar means a feigned contract of sale should be established against the owner of land. Hence the act in terms avoids entirely every contract, of which the sale of land is the subject, in respect of a party, that is, either party, who does not charge himself by his signature to it after it has been reduced to writing.

Per Curiam. J udgment affirmed.