Brown v. Hobbs

concurring: I assent to the affirmance of the judgment in this case, for the reasons stated in the opinion of the Court, one of which reasons is that the contract for the sale of the land is not enforcible against the plaintiff, who is protected by the statute of frauds. He denies the contract as set out by the defendant, and the statute, therefore, is sufficiently pleaded (Bonham v. Craig, 80 N. C., 224) ; but, in addition to the denial, he specially pleads the statute. If the plaintiff had executed to the defendant a deed for the land, and all of the judgments against the defendant had been paid, except the sum of $492.66, which by the agreement of the parties, if admitted, was to be applied in satisfaction of the judgment, a different question from that presented in the record might be raised, and perhaps; as the contract would be pro tanto executed by a delivery of the deed, the plaintiff could not keep the land by claiming under the deed, and avail himself of the statute, in order to escape performance of his part of the contract to pay the balance of the purchase money or apply it to the satisfaction of the judgment. It might well be contended, then, that by retaining the deed as his own, he would thereby affirm the contract and become liable for the purchase money. Smith v. Arthur, 110 N. C., 401; Rice v. Carter, 33 N. C., 298; Choate w. Wright, 113 N. C., 289; Drake v. Howell, 133 N. C., 168. The statute was enacted to prevent frauds and not to encourage them. But I need not stop to inquire how such facts, if they existed, would affect the rights or remedy of the defendant (who is the actor in this case, the plaintiff, alleged vendor, being the party to be charged), for the contract relied on by the former is purely executory in its terms. Neither party has performed his part of it, if it ever was made. In this state of the facts, the plaintiff can successfully resist the motion of the defendant under *548the statute. He occupies tbe right position in the proceeding, for the defendant seeks to “charge him,” or, in other words, to enforce a performance of the contract by him. 'With respect to the plea of the statute of frauds, there is no right or “wrong end of the contract.” It might be proper to say that a party is at the “wrong end” of the suit to plead the statute, for if he were not the defendant, or the party against whom it is sought to enforce the contract, whether plaintiff or defendant, vendor or vendee, he might, in a general sense, be said to occupy the wrong position in the case for that purpose. Judge Pearson crystallized the true doctrine when he said in Rice v. Carter, 33 N. C., 298: “The object of the statute was to secure the defendant.” He, of course, referred not only to a party whose nominal position on the record is that of a defendant, but to one whose real and substantial position is such, as being the party sought to be charged by an enforcement of his part of the contract. This Court dealt with the very question in Hall v. Misenheimer, 137 N. C., 184, and it is just as well to reproduce what was then said as to restate the doctrine. It is an important one in pleading and practice, as well as in its direct application upon the rights of parties with respect to their conti-acts which fall within the provisions of the statute. It was said in that case:

“But we think there is a serious obstacle in the way of plaintiff’s recovery. The statute expressly requires a contract to sell land, or some note or memorandum thereof, to be put in writing and signed by the party to be charged therewith or by his lawfully authorized agent. The Code, sec. 1554. In order, therefore, to charge a party upon such a contract, it must appear that there is a writing containing expressly or by implication all the material terms of the alleged agreement, which has been signed by the party to be charged, or by his agent lawfully authorized thereto. Gwathmey v. Cason, 74 N. C., 5 (21 Am. Rep., 481), especially at page 10, where Rodman, J., states the rule Miller v. Irvin, 18 N. C., 104; Mizell v. Burnett, 49 N. C., 249, 69 Am. Dec., 744; Rice v. Carter, 33 N. C., 298; Neaves v. Mining Co., 90 N. C., 412; *549Mayer v. Adrian, 77 N. C., 83. Many other eases could be cited from our Reports in support of tbe rule, but those we have already mentioned will suffice to show what is the principle, and how it has been applied. In commenting on the policy of the statute, so far as it affects the vendee, and answering a suggestion that the statute applies only to the vendor, who alone conveys the land or any interest therein, Ruffin, C. J., for the Court, in Simms v. Killian, 34 N. C., 252, says: ‘The danger seems to be as great that a purchase at an exorbitant 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 the 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.’ So in a case where a stipulation that the vendee would open a street, which constituted a part of the price to be paid for the land, was not stated in the writing, it was held by this Court that the vendor could not recover for a breach of the stipulation, because, being a part of the price, it was also a part of the agreement, and was not evidenced by a writing which had been signed by the defendant. Hall v. Fisher, 126 N. C., 205; Ide v. Stanton, 15 Vt., 685, 40 Am. Dec., 698. The fact that the defendant in this case paid $5 on the purchase money and took possession of the land, does not change the result. The doctrine of part performance is not now recognized by this Court.

“The party to be charged upon a contract, within the meaning of the statute, is the defendant in the action, or the party against whom it is' sought to enforce the obligation of the contract. It is not the vendor, unless he occupies upon the record the position of the party who is called upon to perform his contract. . . . Anything said in Taylor v. Russell, 119 N. C., 30, in conflict with this view of the statute cannot, we think, be sustained. Green v. R. R., supra, which is cited in Taylor v. Russell, does not support the proposition that the vendee is not protected by the statute. In that case *550the plaintiff, who was the -vendee, sued the defendant, who was the vendor, to recover the value of the wood which be agreed to give for the land at a stipulated price. The Court beld merely tbat as tbe plaintiff bad sued on tbe contract and the defendant bad waived tbe statute, be was bound by its terms and must recover, if at all, not tbe value of tbe wood, but the price agreed upon. He could not in such ease repudiate bis contract, when defendant was willing to perform it. In support of this ruling, the Court cited Mizell v. Burnett, supra, which case directly sustains tbe doctrine as we have stated it. Tbe defendant, therefore, can avail himself of tbe statute as tbe party to be charged.”

We cite in support of the principle as thus stated, the following cases: Mizell v. Burnett, 49 N. C., 249; Love v. Welch, 97 N. C., 200; Green v. R. R., 77 N. C., 95; Love v. Atkinson, 131 N. C., 544. The case last cited, decided some time after Taylor v. Russell, is directly in point, and tbe full purport of tbe case is thus stated in tbe syllabus: “Tbe vendor wbo signs a contact for tbe sale of land cannot enforce payment of tbe purchase money by tbe vendee, if be has not signed tbe contract, though the vendee has paid a part of tbe purchase money amd has been put in possession.” In Davis v. Martin, 146 N. C., 281, Justice Brown said: “Tbe fact that tbe plaintiffs did not sign tbe contract will not avail defendants. It was duly executed, delivered, and registered, and is binding on tbe party to be charged. Tbe plaintiffs are not tbe parties to be charged, within tbe meaning of tbe statute of frauds. They stand by their contract to pay, and seek to charge tbe defendants with its performance.”’ In Bank v. Loughran, 126 N. C., 814, the vendee bad executed notes for the purchase money, and tbe action was brought to recover tbe amount of tbe notes. He could not, of course, plead tbe statute to defeat bis own written and signed promise to pay money. McNeill v. Fuller, 121 N. C., 209, was like Bank v. Loughran, supra—an action on notes given for tbe purchase money of land. It is true tbat Justice Burches, who wrote tbe opinion in Taylor v. Russell, uses this expression, “But if there was no bond, the defendants *551are at the wrong end of the contract to plead or take advantage of the statute of frauds”; but tbis was a dictum,, and a clear inadvertence, as it is opposed by all tbe best considered cases on tbe subject. Nor does Harty v. Harris, 120 N. C., 410, apply. The point was not made in the case. The present Chief Justice well says, at tbe conclusion of tbe opinion: “The statute of frauds! cuts no figure. It is not pleaded, nor is tbe contract of leasing denied. On tbe contrary, the party wbo might plead tbe statute avers and is relying on tbe contract. The only controversy is as to its terms and legal effect. Taylor v. Russell, 119 N. C., 30. Besides, if tbe lease were void under tbe statute of frauds, tbe lessors could only recover for tbe time tbe premises were occupied. Tbe Code, see. 1746.” That is in harmony with Smith v. Arthur, Hall v. Misenheimer, and the other cases; but all of the cases cited, except Taylor v. Russell and McNeill v. Fuller, in which dicta to tbe contrary will be found, are far from even intimating that there is a “wrong end of tbe contract,” and that the party who is unfortunate to be at that end is not in the protection of the statute. The case of Rogers v. Lumber Co., at last term, ante, 108, did not present tbe question now being considered, as will appear from tbe following extract: “It has, been suggested that said promise was void because it was an agreement in regard to an interest in land, and should have been in writing. Revisal 1905, sec. 976. But tbis was an executed and not an executory contract to convey an interest in land. That bad already been done in tbe written contract. Besides, tbis is not pleaded. Tbis was a stipulation to assume tbe payment of a certain sum of money.” It is true that Taylor v. Russell is cited in that case, and witb reference to it tbe following is said: “That case cites Green v. R. R., 77 N. C., 95, and other cases which bold that tbe promisor to pay money ‘is at tbe wrong end of tbe contract’ to object, that tbe agreement is not in writing. Tbis has been cited and affirmed in Harty v. Harris, 120 N. C., 410, 27 S. E., 90; McNeill v. Fuller, 121 N. C., 213, 28 S. E., 299; Bank v. Loughran, 126 N. C., 818, 36 S. E., 281; Davis v. Martin, 146 N. C., 281, 59 S. E., 700.” But tbis may serve to *552explain what was meant in Taylor v. Russell by the words: “He is at tbe wrong end of the contract to do tbis” — tbat is, to plead the statute of frauds. In Taylor v. Russell tbe action was between two partners wbo bad agreed upon terms of settlement of tbeir affairs, one of wbicb was tbat tbe plaintiff should convey to defendant one-balf interest in a mill site and improvements, tbe defendant having received a large part of tbe assets of tbe concern. Plaintiff asked for an account. It was held tbat in equity tbe agreement, so far as it related .to tbe mill site, would be deemed as executed, and tbe title to one-balf thereof as vested in tbe defendant. “If tbe plaintiff is ready and willing to convey, as be alleges be is, equity will consider tbat wbicb should be done as done, and tbe defendant, in equity, a joint owner of'this property.” This brought tbe case within tbe ruling in Smith v. Arthur, supra, as tbe contract was treated, whether rightly or wrongly, as executed. By what was said in regard to tbe “wrong end of tbe contract” was meant, perhaps, tbat as tbe defendant bad received bis share, be could not plead tbe statute so as to prevent tbe plaintiff from complying with bis part of tbe contract by executing tbe deed as evidence of tbe defendant’s title to tbe land. If it meant any more than tbat, it is not in alignment with tbe well-settled doctrine of tbe courts. The promise in Rogers v. Lumber Co., supra, was an original one — not a promise to answer for tbe debt of another — and tbe statute did not apply in any view of tbe facts. We have seen that Green v. R. R., Harty v. Harris, Davis v. Martin, and other cases cited do not decide that tbe application of tbe statute is to be determined by the relative position of tbe party wbo pleads it, in tbe contract, whether at one “end” or tbe other, but bis position on tbe record, as nominally or substantially a defendant or “tbe party to be charged.” The decision in Rogers v. Lumber Co. did not turn upon tbe position of tbe parties with reference to tbe contract, but upon tbe conceded fact tbat tbe promise attempted to be enforced was an original one and not one to answer for tbe debt of another, and neither party could rely on tbe statute to defeat tbe other. It is clear tbat a mere “promisor to pay *553money” for a good consideration moving directly to bim from tbe party to wbom tbe promise is made, is not in a position to plead tbe statute of frauds, for be is not witbin either its letter or spirit.

Tbe view herein taken of the statute is supported not only by our own' decisions, but by those in other jurisdictions. Tbe rule is stated, as I understand it to be, in 20 Cyc., at page 272, with a copious reference in tbe notes to tbe authorities, as follows : “A party not signing tbe memorandum obviously cannot be charged on tbe contract; but in England, and generally in tbe United States, tbe only signature made necessary by tbe statute is that of tbe party against wbom tbe contract is sought to be enforced. ... In reference to contracts for tbe sale of land it is generally held, as in other agreements witbin tbe statute of frauds, that tbe party not signing tbe memorandum is not bound; but that tbe only signature required is that of tbe party against wbom tbe contract is sought to be enforced.” In Morin v. Martz, 13 Minn., 191, it is said: “It will also appear from tbe authorities cited, that tbe language, ‘who is to be charged by it,’ is held equivalent to tbe language, ‘who is to be charged by it in tbe suit,’ or ‘against wbom it is sought to be enforced.’ ... It would seem that «by a strong and united current of authority tbe signification of tbe words ‘parties to be charged therewith,’ or of words equivalent in tbe statute of frauds, has been settled by adjudication reaching over a very long period of time.” In tbe leading case of Laythoarp v. Bryant, 29 Eng. C. L., 469 (7 Bing. N. C., 35), tbe vendee only bad signed tbe memorandum upon which tbe suit was brought against bim, and be was held to be bound as the party to be charged. Chief Justice Tindal, referring to tbe words of tbe statute, unless tbe contract or some memorandum thereof shall be in writing and signed by tbe party charged therewith, inquired, “By what party?” He answered bis own question thus: “By tbe party to be charged therewith — tbe defendant in tbe action.” He then added that, “Tbe object of tbe statute was to secure tbe defendant’s signature, and tbe whole purpose of tbe Legislature is answered when we put this con*554struction on the statute. When the party who has signed is the one to be charged, be cannot be subject to any fraud.” In this respect the English statute and ours are worded alike. In 1 Reed on Statute of Frauds, vol. 1, sec. 359, and p. 578, it is said: “Whether be be vendor or vendee is immaterial; tbe ven-dee, if defendant, must sign, and tbe vendor, if defendant, must sign. Tbe vendee, if plaintiff, does not have to sign.” The cases on this point are numerous and uniform in bolding according to the rule I have stated: Martin v. Mitchell, 2 Jac. and W., at p. 426; Seton v. Slade, 7 Vesey Ch. Rep., 265-275; Newby v. Rogers, 40 Ind., 9; Dressel v. Jordan, 104 Mass., 412; Justice v. Lang, 42 N. Y., 493-501; Ives v. Hazard, 67 Am. Dec. (4 R. I., 14), 500; Black v. Crowther, 74 Mo. App., 480; Houghwont v. Boisanbin, 18 N. J. Eq., 315; Bowers v. Whitney, 88 Minn., 168; Appeal of McFarson, 11 Pa. St., 503; Raphael v. Hartman, 87 Ill. App., 634; Hodson v. Carter, 3 Pinney (Wis.), 212. An instructive case is Marqueze v. Caldwell, 48 Miss., 23, in which tbe Court reviews tbe authorities, and says at p. 31: “The statute exacts that tbe contract or agreement, or some note or memorandum thereof, shall be signed by tbe person to be charged. It is said by Sugden on Vendors, p. 99, ‘that be wbo signs will be bound, although tbe other party did not sign.’ If tbe suit be against tbe party wbo signs, tbe statute is satisfied, for be, is tbe party charged. Tbis author states that tbis view of tbe statute bas been sustained by tbe authority of Lords Keepers North and Wright, Lord Hardwicke, Ch. Bar. Smith, Lords Eldon, Thurlow, and Sir William Grant. Browne in his Treatise on tbe Statute, p. 385, says: ‘It is now uniformly held that tbe signature of tbe defendant in tbe suit, alone, or tbe party who is to be charged upon tbe agreement, is sufficient.’ . . . Chancellor Kent, in Clason v. Bailey, 14 Johns., 484, after a very thorough review of tbe English cases, came to tbe conclusion that ‘The point is too well settled to be now questioned.’ ” In Hodson v. Carter, supra, tbe clear result of tbe cases is thus expressed: “It required tbe memorandum to be ‘signed by tbe parties to be charged by such contract.’ And yet tbis language bas been *555construed as not requiring the signature of the parties to be charged with the contract, but as requiring simply the signature of tbe party to be charged by the suit. And this construction has been established, in spite of tbe earnest protest of Lord Redesdale, through a series of adjudications, both at law and in equity, in England and in this country, by a weight of authority quite beyond the limits of questioning, and almost above the reach of criticism. See, for a review of these authorities, Clason v. Bailey, 14 Johns., 484.” Equally positive and strong is the language of the Court in Justice v. Lang, sufra: “The end and object of the statute are obtained by written proof of the obligation of the defendant; he is the party to be charged with a liability, dependent on and resulting from the evidence, and he is intended to be protected against the dangers of false oral testimony. To say that the plaintiff or the party seeking to enforce a contract is himself a party to be charged therewith is a perversion of language.” And in Newby v. Rogers, supra, the rule is thus tersely stated: “When the statute speaks of the ‘party to be charged,’ it must be understood to mean the defendant to 'the action. The note or memorandum must be signed by him, but need not be signed by the plaintiff.” Sir Thomas Plumer, Master of the Rolls, in Martin v. Mitchell, supra, said that “The word ‘charge’ evidently means charged in the action. When you file a bill, you attempt to charge the defendant ; and if he has signed the agreement, it is signed by the party to be charged, and it seems to follow that he cannot take advantage of the statute.” See, also, Williams v. Robinson, 73 Me., 194; Improvement Co. v. Guthrie, 116 N. C., 381; Foust v. Shoffner, 62 N. C., 242. Davis v. Yelton, 127 N. C., 348, is very much in point. Yendor had signed memorandum to convey land to vendee, who, in his turn,, had verbally promised to pay $400 for it. Suit was brought by vendor for specific performance and defendant (vendee) pleaded the statute of frauds. The court refused to permit the introduction of parol evidence to show the defendant’s promise to pay the purchase money, and charged that the plea of the statute was good and plaintiff could not recover. This Court held that • the charge *556was correct, and affirmed tbe judgment, citing Rice v. Carter, 33 N. C., 298; Wade v. New Bern, 77 N. C., 460, and Gwathmey v. Cason, 74 N. C., 5, as controlling authorities which sustained the ruling.

The following authority, 29 Am. and Eng. Enc. (2 Ed.), 808, and the cases cited in note 6, viz., Holland v. Hoyt, 14 Mich., 238; Burke v. Wilber, 42 Mich., 327; Washington Glass Co. v. Masbaugh, 19 Ind. App., 105, will be found, upon careful examination, to be based upon statutes worded differently from ours, and, besides, the decisions were made upon executed contracts, and it appears, too, that the vendees had either given notes for the purchase money or signed a memorandum.

My conclusion is that the statute of frauds, which was relied on by the plaintiff in this case, defeated the defendant’s recovery, apart from the other reason assigned by the Court.

Tbis seems to be an ingenious effort upon tbe part of counsel for defendant to enforce a parol contract in regard to land. Tbe section of tbe Eevisal (579) under -which tbe motion is made was intended to give tbe judgment debtor a speedy and inexpensive remedy when be bad made payments which tbe creditor refused to enter on tbe judgment. Tbe procedure under tbe motion is clearly stated in tbe statute.

We do not think it was -intended to embrace a controversy like tbis, growing out of an independent contract, which may be tbe subject of another action. Tbe statute says tbe remedy by motion may be-bad “when any payment has been made on any judgment.”

*546Tbe defendant has paid nothing. On his own showing, he has entered into an entire contract, void under the statute of frauds, and the plaintiff claims that he is not willing to perform this.

We agree with his Honor that these controversies cannot be settled in this motion.

Affirmed.

concurring: The statute of frauds, Revisal, 976, makes void, not the promise to pay, but only “the contract to sell or convey” realty, when not in writing. The construction that the defendant only can plead the statute makes its application depend upon the accident of the position of the parties to the action. The more reasonable construction is that the “party to be charged” means “the party sought to be charged” with the conveyance of realty.

In 29 A. and E. Enc. (2 Ed.), 808, it is said, citing many authorities: “The vendee in a parol contract for the sale of land cannot set up the statute where the vendor is ready and willing to perform and seeks to recover the purchase money.” To the same effect are Holland v. Hoyt, 14 Mich., 238; Burke v. Wilbur, 42 Mich., 328, which hold that the statute of frauds “does not require the agreement of a vendee to pay the purchase money to be in writing.” To the same tenor, Washington Glass Co. v. Masbaugh, 19 Ind. App., 105; Taylor v. Russell, 119 N. C., 30; Harty v. Harris, 120 N. C., 410; McNeill v. Fuller, 121 N. C., 213; Bank v. Loughran, 126 N. C., 818; Rogers v. Lumber Co., at last term, ante, 108, and many other cases in this and other courts. There are authorities to the contrary. The point is an open one, and it may be well to settle it by amendment of the statute. It does not arise for decision in this case.

It would seem clear upon the reason of the thing that as a verbal contract for the payment of money is good and en-forcible when given for all other considerations, there is no cause to construe the statute of frauds to mgike it invalid when the consideration is realty. The mischief intended to be remedied by the statute of frauds is solely the obtaining an inter*547est in land under a verbal conveyance or contract, and it was intended as a protection to the vendor only. There is no protection needed by the purchaser more than by any one else who gives his verbal promise, upon a consideration proven or admitted, to pay money.