Smith v. Smith, 36 N.C. 83, 1 Ired. Eq. 83 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 83, 1 Ired. Eq. 83

STARKEY SMITH vs. SAMUEL S. B. SMITH et al.

If a bill be filed for the specific execution of ar. agreement ior the purchase of land, alleged to he evidenced by a written memorandum, and the allegation be not sustained by the proof, the plaintiff cannot, under the prayer for general relief, obtain compensation for improve.ments upon the lands.

The plaintiff, in his bill, stated that his- father, William Smith, in. the year-1829, agreed, by parole to sell him a certain tract of land- therein described, in consideration of the sum of $80, and the plaintiff’s doing his father’s shoemaking during his life.- That in pursuance of this agreement, and with the consent of his father, the plaintiff-entered upon the land and improved the same by building houses upon it to the value of $200;. that he paid the price in money and shoe-making; and that his father, in December, 1833,. executed to f0i]0wjng receipt and agreement;

“Received of Starkey Smith, December the llth, 1833, eighty dollars in full for the land where the said Starkey Smith now lives, commencing at David Mitchell’s corner near my fence where I now live, then splitting the land between the two roads to Miss Wright’s line; all the land east of that I have sold to my son Starkey.

WILLIAM SMITH.”

The plaintiff then stated that his father died without ever having executed to him a deed for the land. The prayer of the bill was for a specific execution of the agreement, and for general relief.

The defendants, in their answers, admitted that their father, William Smith, permitted the plaintiff to take possession of the tract of land mentioned in the bill; and they also admitted that he had made improvements thereon by building, &c., but they denied that their father ever executed the receipt or agreement set forth in the bill, or that the plaintiff ever paid any money for the land. They also denied that their father ever intended to sell or give the land to the plaintiff in any other way than by a last will and testament, which he never made. A replication was filed to the answers, and much testimony was taken on both sides, the result of which is stated in the opinion of the court.

W. A. Graham for the plaintiff.

J. T. Morehead for the defendants.

Daniel, Judge,

after stating the case as above, proceeded: It is proved to our satisfaction, that the body of the paper writing, set out in the bill as the agreement, is in the proper handwriting of the plaintiff. Three witnesses depose, that they were acquainted with the hand writing of William Smith, and that the signature to the paper writing is in the proper handwriting of the plaintiff’s father, William Smith. Two witnesses testify that the father had, in conversation with them and others, said that he had agreed to sell the land to the plaintiff. The plaintiff has failed to prove, that he ever paid a cent of money, or that he ever was possessed of money at any one time to the amount set forth in the receipt. On behalf of the defendant, one witness deposes that he was acquainted with the handwriting of William Smith, and that the signature to the supposed agreement, is not in his handwriting. Many witnesses depose, that the plaintiff, frequently, and at divers times and places, immediately after the death of his father, and for years afterwards, said that he had not the scratch of a pen in writing from his father for the land; that he had no right by any writing for the land; he appeared uneasy on account of his home. When the dower of his mother was laid off, the plaintiff was present} and made no objection that the land in dispute should be included to make up the quantity, out of which she was to take dower. The paper now attempted to be set up as an agreement, was not shewn by the plaintiff to any person until long after the death of his father. The father made a will and died in January, 1835. The will did not have the necessary number of witnesses to pass lands. In this will, the lands in dispute were attempted to be devised to the plaintiff. Taking together all the evidence and circumstances in the case, we must say that we are not satisfied, that William Smith ever affixed his name to the paper, as evidencing an agreement on his part to sell, or as a receipt for the purchase money of the land. There are too many circumstances In the case tending to shew that the plaintiff either signed his father’s name, or that he wrote the receipt and agreement over the genuine name of his father, found on some blank piece of paper. We cannot think that any agreement is proved — certainly not sufficiently proved, so as to call for a decree for a specific performance.

Upon the hearing, the plaintiff’s counsel set up a claim for compensation, in case the court should deem the alleged purchase not proved. In answer to that claim, it is sufficient for us to say, that under the prayer for general relief, none can be granted, but such as is warranted by the case made in the pleadings; and the sole ground upon which the bill asks any relief is upon the particular purchase, alleged to be evidenced by a written memorandum, which allegation is not sustained to our satisfactian. If the plaintiff can make any case at law, either for damages or compensation, this decisión will not stand in his way.

The bill must be dismissed with costs.

Per Curiam.’ Bill dismissed.