Ellis v. . Ellis , 16 N.C. 180 ( 1828 )

The bill then charged that the defendant, pretending the plaintiff was bound to him as a guarantor of the bond of Stanton and Peel, who had proved insolvent, had refused to convey the land sold, and had commenced an action of ejectment against the plaintiff to turn him out of possession.

The prayer of the bill was for an injunction and a specific performance of the contract of sale.

(181) The defendant in his answer relied upon the act of 1819 (Rev., ch. 1016). He also denied the equity of the plaintiff's bill; but it is not necessary for the purpose of this report to give his views of the contract of sale.

The injunction had been dissolved, and it appeared from a copy of the record of the action of ejectment, which was filed as an exhibit, that the plaintiff had been turned out of possession, and that the defendant had recovered for the mesne profits. I think there can be no reasonable doubt that the act of 1819 was made to effect the same object with the statute of frauds and perjuries, so far as it respected parol contracts of sales of land. The mischief here was of the same character with that sought to be remedied in England, and the full extent of it had recently been brought into view by a decision of this Court decreeing the specific execution of a parol contract where there was no part performance.

There is some difference in the phraseology of the two statutes, but none I think in their substantial meaning. Our act makes all contracts to sell or convey any lands void and of no effect unless they be put in writing. The statute of 29 Charles II. prohibits the bringing (184) of any action upon any contract or sale of lands, or any interest in or concerning them, unless the agreement on which such an action shall be brought, or some memorandum or note thereof, shall be in writing, etc. As this would extend to prevent the institution of a suit in equity as well as at law, it is equally operative with our act, since depriving the party of all remedy on a contract is equivalent to annulling it. In this view, I think, the expositions of the statute of frauds are applicable to ours, and that after a system has been built up by the judgments of a succession of able men, it would be unwise and unsafe to depart therefrom.

In the present case the purchase of the land was made by the plaintiff, and he let into possession thereof with the defendant's consent. Now, if the purchase money was paid according to contract, or there was no agreement to guarantee the note of Stanton and Peel (which is a subject of future inquiry), it is equitable that the plaintiff should be quieted in his purchase; and, indeed, it would be flagrant injustice to allow the defendant, after receiving the price and giving up the possession, to commit a fraud under the sanction of a statute made for the prevention of fraud. If this agreement should not be performed, the plaintiff, by being put into possession, has had a fraud practiced upon him, and made a trespasser, and liable to account for the rents and profits. To show that he entered by agreement, and thus defend himself from the charge of being a trespasser, it is allowable to prove the parol agreement and the delivery of possession; and being allowed for that purpose, it is equally reasonable that it shall be allowed throughout. This principle is illustrated and explained in a satisfactory manner in Clenan v. Cooke.

Nor does it seem that any mischief can arise under this construction, guarded and limited as it is to those cases where the acts done are of such a nature that they could not possibly be executed with (185) any other view than to perform the agreement; for if they are equivocal, or might have been done with other views, the agreement will not be taken out of the statute. Ambler, 586. A plainer case, with respect to the design of delivering possession, cannot well exist than this. It was the clear intention of both parties that it should be in execution of the agreement; and if the defendant has, in fact, been paid according to contract, he ought to be enjoined perpetually, and decreed to execute a deed.

PER CURIAM. Direct an account to be taken by the master of the purchase money, and let him report upon the nature of the guaranty which the defendant claims the plaintiff to have given of Stanton's and Peel's bond.

Cited: Love v. Atkinson, 131 N.C. 347, and other citations to same case post, 343 and 403.