Allen v. Chambers

• Citation: 4 Ired.Eq. 125,39 N.C. 125
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1845
• Parties: DRURY ALLEN v. MOSES CHAMBERS.

4 Ired.Eq. 125

39 N.C. 125

DRURY ALLEN

v.MOSES CHAMBERS.

Supreme Court of North Carolina.

December Term, 1845.

A Bill, praying for the specific performance of a contract for the conveyance of land, is defective, if it does not contain so particular a description that the Court may know with certainty the land, of which they are asked to decree a conveyance.

If a Bill be brought for the specific performance of a parol contract for the conveyance of land, although the defendant does not rely upon the plea of the statute, rendering such contracts void, yet if he denies the contract as stated in the Bill, and insists that the real contract was a different one, this Court will not permit parol evidence to be heard in support of the plaintiff's claim.

Part performance, such as the payment of the whole of the purchase money and the delivery of the possession to the vendee, will not, in this State, dispense with a writing, if the statute be insisted on, nor admit a parol proof of a contract, different from that stated in the answer.

The case of Ellis v. Ellis, 1 Dev. Eq. 180, 341, cited and approved.

Cause removed from the Court of Equity of Person County, at the Fall Term, 1845, by consent of the parties.

The bill was filed in 1844, and states, that, in 1840, the defendant made a parol contract to sell to the plaintiff “a certain parcel of land in the County of Person, to contain by contract 200 acres, at $2 per acre”; that, some time in the same year, the plaintiff and defendant partly performed the said parol agreement, by the payment to the defendant by the plaintiff of the sum of $240, for which the defendant gave receipt in the following words: “Received of Mr. Drury Allen, two hundred and forty dollars, in part for a certain tract of land lying on Flat river, including Taylor Hicks' Spring-house and lot.?? &c., and adjoining the land of Lewis Daniel, Womack, and others.”

The bill further states, that, upon such payment, the defendant let the plaintiff into possession “of the said land,” in pursuance of the agreement, and that the plaintiff has offered to pay the residue of the purchase money, and requested the defendant to convey to him the land in fee; but that the defendant refused to do so, for the reason, that the defendant denies the contract as herein stated, and sets up another agreement in relation thereto, and threatens to turn the plaintiff and his tenants out.

The prayer is for a decree for the specific performance of the said agreement, and that the defendant be compelled “to convey to the plaintiff the said land as agreed between them.”

The answer admits, that, in 1840, the parties entered into a parol contract for a tract of land, and that the defendant received a sum of money, either $220, or $240, thereon, as a part of the purchase money. But the defendant denies positively, that the contract was as set forth in the bill. and says that it was essentially different. The answer then states, that the defendant is the owner of a tract of land containing between six and eight hundred acres, and that the plaintiff applied to him to purchase a part of the said land, to be laid off at the west end of the tract; that the plaintiff at first spoke of buying 200 acres, and the defendant agreed to sell him that, or any other quantity he might want, at the price of $2 50 per acre and not at $2, as stated in the bill; and the plaintiff concluded to take a parcel of land on those terms; and that it was further agreed, that the parties should employ a surveyor to lay off the quantity the plaintiff might choose, at the West end of the tract, and to run, so as, at the least, to include therein a house and small farm occupied by one Taylor Hicks, who then lived on a part of the land, as a tenant of the defendant. The answer states, that, not long afterwards, the parties employed a surveyor, who made a survey precisely as he was directed by the plaintiff, who was present, and marked the lines and corners himself: that when the surveyor had run East far enough to make 200 acres by running across the tract to the opposite North line, he informed the plaintiff and the defendant of the fact, and the former said he wished to include the Spring and Hicks' improvements, and ordered the surveyor to proceed on the former course, until the plaintiff should tell him to stop; and so it was accordingly done: that the land thus laid off was plotted by the surveyor and the quantity ascertained to be 366 acres; for which, in a few days, the surveyor prepared a deed, which the defendant executed, and had attested and tendered to the plaintiff, requesting him to accept it and pay the residue of the purchase money; but that the plaintiff refused. The answer states, that, nevertheless, the plaintiff entered into the land and settled his son thereon, and that neither the farm nor the houses are within a tract of 200 acres, laid off at the West end of the tract. The answer further states, that the defendant...