Love v. Neilson, 54 N.C. 339, 1 Jones Eq. 339 (1854)

Aug. 1854 · Supreme Court of North Carolina

54 N.C. 339, 1 Jones Eq. 339

EBZAN LOVE against PHILIP H. NEILSON.

The Court of Equity having obtained jurisdiction upon the question of the specific performance of acontractto convey land, though it should refuse the relief prayed for, because the contract was not in writing-, yet under the prayer for general relief, will decree an account for improvements made on the land under such contract.

Cause removed from the court of Equity of Madison county at the Spring Term, 1854.

The allegations in the hill were that the defendant owned a water power and site for a saw mill on the French Broad river, and that it was agreed between them by parol that plaintiff should build a saw mill at this site at the joint expense of the two, the plaintiff giving his personal attention and oversight to the work, and defendant to make no charge for the work of his hands — that the plaintiff had the work done according to the contract and paid towards its accomplishment $438, and the defendant $266, as was ascertained by a seitlement thereafter had between them, (which is al-ledged to be in the hand writing of the defendant, and is filed as an exhibit.) The plaintiff father alledged that he had fulfilled his part of the contract, and had called on the defendant frequently to comply with his part thereof, by making the conveyance for one half as he had agreed to do, but that he has utterly failed to comply with his bargain as set forth above, and that he has got the sole and exclusive possession of the said mill, and is working and using the same as his exclusive property, and refuses to let plaintiff come into joint possession with him thereof, and altogether denies that plaintiff has any right or property therein.

To meet the requirements of the statute as to thenecessity that he should show some note or memorandum in writing of the said contract, the two following letters were set forth in the bill, viz:

“March 26th, 1853.

“ Mr. EbzaN Love :

“ Mr. Smith informs me that you wish to buy my half of the mill: as I throw no obstacle in your way about the mill, you may have it for three hundred dollars; say you pay me $200 in lumber, and credit my account with $100 as agreed with Mr. Smith. I allow you half an acre of land with the mill fer the use of the miller, and give a bond to make a title as soon as the last payment is made.” (Signed by the defendant). Also the following:

“ March 31st, 1853.

“ You can have the mill on the terms agreed with Mr. Smith. An half acre of ground beginning at the mill, coming down, and paid for in lumber.” [Signed by the defendant.] And it is further alledged that these letters relate to a contract made with a Mr. Samuel Smith as the agent of the defendant by which it was agreed that ^plaintiff should hmethe whole m- terest in the mill by paying $300 to defenda/nt in lumber, and farther should have half an acre of land with the mill: that the letter of 26th- of March was a proposal to modify this contract which plaintiff having refused to accede to, the letter of 31st was written to recognize and affirm the contract as made with Smith.

He prays for a specific performance of the contract and for general relief as follows, “ and that your orator shall and may have such other relief as the nature of his case shall and may require and shall be according to equity and good conscience.”

At the term to which process was returned the defendant appeared and pleaded in bar of plaintiff's right to recover, the Act of Assembly made and passed in the year 1819, making void all contracts about land, unless such contract shall be put in writing. The cause was set down for hearing and removed to this court by consent.

N. W. Woodfin for plaintiff.

Bynum and J. W. Woodfin for defendant.

Battle, J.

The defendant’s plea,,-must be sustained, unless by to on March 1853, contain the terms of a contract for the sale of one half of the mill-site and mill, mentioned in the bill, sufficiently certain to entitle the plantiff to a specfic execution thereof in this court. It is manifest that they do not — the letters taken together amount at most, to a mere offer by the defendant, to sell to the plantiff his half of the mill, but there is nothing in them, or either of them, from which it can be inferred, that he had contracted to convey to the plantiff the other half of the said mill. The plea must therefore be sustained, so far as the bill seeks a conveyance of one half of the mill and the appurtenances.

But upon the authority of Baker v. Carson, 1 Dev. and Bat. Eq. 381, and Albea v. Griffin, 2 Dev. & Bat. Eq. 9, we think that the plaintiff is entitled, in this Court, to be paid for the improvements which, under his contract with the defendant he, by his work and labor, put upon the defendant’s land. As to obtain this, he is entitled to' answer from the defendant, and, as the answer cannot be filed in this Court, the cause must be removed to the Court below for that purpose. See Smith v. Konegay, ante 40.

Decree accordingly