Murdock v. Anderson, 57 N.C. 77, 4 Jones Eq. 77 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 77, 4 Jones Eq. 77

MURDOCK AND BAIN against THOMAS ANDERSON.

A receipt for a part of the purchase-money, for a house and lot, without any description of the property to be conveyed, is nota sufficient note or memorandum of an agreement, under the statute of frauds, and cannot be-helped out by parol evidence.

Where a suit was brought for the enforcement of a contract to convey land, in which relief was refused, because the writing relied on was not sufficiently explicit, it is not within the province of the Couri to decree a repayment of the purchase-money that had been paid; because that is recoverable at law.

Cause removed from the Court of Equity of Orange county.

The bill alleged a parol contract, which was, that the defendant should convey to the plaintiff, Murdoch, a certain house and lot, in the town of Hillsboro’, which is described in the bill according to certain metes and bounds, but the only memorandum, or written evidence of the contract, relied on, was the following :

“Deceived of A. C. Murdock one hundred dollars in tinware, and one carryall at seventy-five dollars, in part payment of one house and lot, in the town of Hillsborough, purchased of me, by him, for the sum of three hundred and fifty dollars.” Signed by the defendant.

The bill alleged further, that <$175 had been paid by the plaintiff, as stated on the receipt, and that the plaintiff had requested the defendant to convey to him the premises, but that he had refused to do so. The plaintiff Bain claimed, as the assignee of Murdock.

The prayer of the bill was for a conveyance and for general relief.

The answer of the defendant denied the facts, as set forth in the bill. The main question was, whether the writing set forth, was a sufficient note or memorandum of the agreement, under the statute of frauds, or whether parol evidence could be introduced to supply the omissions of the writing in setting out the contract.

The cause was set down to be heard on the bill, answer, former order, proofs and exhibits.

Battle and Bailey, for the plaintiffs.

Phillips, for the defendant.

Pearson, J.

It is the misfortune of the plaintiffs that the contract was not reduced to writing, at the time it was entered into. The defendant denies the contract as alleged in the bill, and the plaintiff is forced to rely on a recital set out in a receipt for a part of the purchase-money. ¥e think the 'evidence is insufficient, because the receipt contains no description of the house and lot, by which it can be identified.

This conclusion is fully supported by the authorities, Mallory v. Mallory, Busb. Eq. 80; Plummer v. Owens, ib. 254; Allen v. Chambers, 4 Ire. Eq. 125.

The distinction is this: where a sufficient description is given, parol evidence must be resorted to, in order to fit the description to the thing ; but where an insufficient description is given, or where there is no description, (as in our case) such evidence is inadmissible. We deem it unnecessary to enter into a discussion of the subject; Deaf and Dumb Institute v. Norwood, Busb. Eq. 65,

This Court cannot assume jurisdiction to decree repayment of the $175; the contract being void, the money can be recovered at law, in an action -for money had and received ; Ellis v. Ellis, 1 Dev. Eq. 398; and there is no peculiar equitable ingredient presented by this case.

Per Curiam, The bill must be dismissed.