concurring in part and dissenting in part: I concur in the conclusion expressed in the majority opinion, supported by authorities therein cited, that the defendant has offered no sufficient competent evidence to establish an easement in the property, title to which he held in trust for the plaintiff. Nor do I desire to challenge the suggestion that if plaintiff stood by and knowingly and without objection permitted the defendant to expend money in constructing a. *49dam and creating a lake on ber property sbe should’ be required to pay therefor, if, as a result thereof, the value of her property was enhanced.

I cannot agree, however, that the pleadings in this case are such as to warrant the submission of an issue of debt on the theory that the-plaintiff has been unjustly enriched by expenditures made by the defendant on her property. The defendant in his cross-action alleges: “That by reason of said agreement above set out (the oral agreement in respect to the construction of the dam, lake, etc.) and by reason of the large sums of money the defendant has in good faith expended in developing said lake, the defendant is entitled to have a decree entered adjudging him to be the owner of an easement in the land covered by the lake or pool and in the appurtenances thereto, including drain ditches, terraces, and the land between the terraces and the lake, all of which are necessary for the proper maintenance of said lake.” There is no allegation as to the amount expended or as to any enhanced value of the property. In my opinion this is not sufficient, even though accompanied by a general prayer for relief. It may be that the defendant is entitled to recover the sums so expended by him, or at least a sum which represents the enhanced value of the property by reason of the improvements. But on the present state of this record he is not entitled to do so in this cause. I, therefore, take the view that the judgment below should be reversed.

Although the statement of facts are prolix, from the exceptions and assignments of error and the record, we gather that there is no dispute as to the “signing an order for a reference as appears of record.” The main controversy, as we understand it: When plaintiff complies with her agreement with defendant in relieving him of his obligation to the Security Life & Trust Company, and the deed is made to her, provision be made in the deed as set forth in defendant’s amended answer “subject to the defendant having an easement and right in and to said sewer line and cesspool and also subject to an easement for the purpose of maintaining said lake.” Further, the question may arise as to the right of defendant to have a recovery for money had and received.

*47Several questions of law arise on tbe exceptions and assignments of error in tbe record. Tbe plaintiff moved for judgment as of nonsuit on defendant’s further defense, wbicb was granted by tbe Eorsytb county court and overruled by tbe Superior Court. TTnder tbis exception and assignment of error plaintiff contends tbat tbe defense set up was an easement and must be in writing.

N. C. Code, 1935 (Micbie), see. 988, is as follows: “All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for tbe purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from tbe taking thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by tbe party to be charged therewith, or by some other person by him thereto lawfully authorized.”

A permanent right to overflow land by the erection and maintenance of a mill dam cannot be created by parol. Bridges v. Purcell, 18 N. C., 492. The doctrine which prevails in many states, that a part or even a full performance of the stipulation of an unwritten agreement for the disposition of an interest in land exempts such agreement from the operation of the Statute of Frauds, is not recognized in this State under this section which declares such agreements to be void and of no effect. Kivett v. McKeithan, 90 N. C., 106 (108); Ellis v. Ellis, 16 N. C., 342. In such a case, however, the party who has advanced the purchase price or has made improvements shall be refunded his advances. Kivett v. McKeithan, supra; Barnes v. Brown, 71 N. C., 507; Luton v. Badham, 127 N. C., 96; Smithdeal v. McAdoo, 172 N. C., 700 (703).

In Justice v. Baxter, 93 N. O., 405 (409), it is said: “It is in just such contingencies, when the ameliorating work has been done bona fide and under the honest belief of having title, that the statute interposes and says to the true owner, you are entitled to your land, but it is inequitable for you with it to take the enhance value of the expenditure and labor of another honestly put upon it.”

A party may rely on the Statute of Frauds under the general issue or a general denial. Luton v. Badham, 127 N. C., 96; Winders v. Hill, 144 N. C., 614. A denial of the contract as alleged is equivalent to a plea of the statute. McCall v. Institute, 189 N. C., 775.

In Kivett v. McKeithan, supra, it is said: “We do not recognize the doctrine which prevails in many of the states, that a part or even a full performance of the stipulation of an unwritten agreement for the disposition of an interest in lands, other than a lease not enduring more than three years (The Code, sec. 1743), exempts such agreement from the operation of a statute which declares it ‘shall be void and of no *48effect’ (sec. 1554), while in such case we compel the restoration of moneys paid under it, and perhaps allow compensation for what has been expended and cannot be restored to the extent of the value of the benefit which the other party receives and appropriates to his own use.”

In Elliott on Contracts, Yol. 2, p. 511, sec. 1271, is the following: “How contract concerning land may be taken out of the statute. If the parol agreement is clearly and satisfactorily proven, and the plaintiff, relying upon such agreement and the promise of the defendant to perform his part, has done some act or acts of performance on the faith of the contract and to the knowledge of the defendant, a court of equity may decree specific performance, when it would be a virtual fraud to allow the defendant to interpose the statute as a defense and at the same time secure to himself the benefit of what has been done in performance.”'

In Avery v. Stewart, 136 N. C., 426 (434), we find: “A mere parol agreement to convey land to another raises no trust in the latter’s favor and comes within the provisions of the statute of frauds. Campbell v. Campbell, 55 N. C., 364. Our case is not of that kind. There are' other elements present which are of an equitable character and affect the conscience of the defendant.” O’Briant v. Lee, 214 N. C., 723.

N. 0. Code, supra, sec. 456, is as follows: “All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim, an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved,” etc. This section contemplates that all persons necessary t0' a complete determination of the controversy, the matter in litigation, and affected hy the same in some way, as between the original parties to the action, may, in some instances, and must in others, be made-parties plaintiff and defendant.

It appears from the pleadings and evidence that Mrs. 0. C. Disher was the former owner of the land in controversy adjoining plaintiff’s-land, and on which the water and sewerage system and lake were built. She may have certain rights for a complete adjustment of the controversy and should be made a party to the action. The questions of law and fact arising on this record are intriguing and intricate.

Modified and affirmed.