Brown v. Hobbs

• Decision Date: 05 April 1911
• Citation: 154 N.C. 544,70 S.E. 906
• Parties: BROWN. v. HOBBS.
• Court: North Carolina Supreme Court

70 S.E. 906

154 N.C. 544

BROWN.

v.HOBBS.

Supreme Court of North Carolina.

April 5, 1911.

Judgment (§ 894^*)—Proceedings to Enteb Satisfaction—Scope of Remedy.

The remedy prescribed by Revisal 1905, § 579, whereby a judgment debtor can move to enter satisfaction of a judgment when he has made payments which the creditor refuses to enter, cannot be used to enforce a parol contract for a sale of land by the debtor to the creditor under agreement that the judgment shall be satisfied as part of the purchase price; such contract being void under the statute of frauds.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 894.*]

Appeal from Superior Court, Duplin County; Whedbee, Judge.

Action by Isaac Brown against D. W. Hobbs. On defendant's motion to enter satisfaction of a judgment for plaintiff. From an order dismissing the motion, defendant ap. peals. Affirmed.

This is a motion by defendant, under section 579 of the Revisal, to enter satisfaction of a judgment, rendered in favor of the plaintiff at August term, 1907, of the superior court of Duplin county. The defendant offered affidavits to prove that on the 13th day of April, 1908, he sold to the plaintiff a lot in Warsaw, at the price of $1,600, on condition that said judgment should be satisfied as a part of the purchase price, that he had tendered a deed to the plaintiff pursuant to the contract of sale, which the plaintiff refused to accept. The plaintiff admitted that he had entered into a contract of purchase, alleged that the same was in parol, and contended that the deed tendered did not embrace all the land in the contract. It was admitted that the contract was in parol and that the plaintiff contended that the deed tendered was not in accordance wih the agreement. His honor dismissed the motion, and the defendant excepted and appealed.

Steven, Beasley & Weeks, for appellant.

F. R. Cooper, for appellee.

ALLEN, J. This seems to be an ingenious effort upon the part of counsel for defendant to enforce a parol contract in regard to land. The section of the Revisal (579) under which the motion is made was intended to give the judgment debtor a speedy and inexpensive remedy, when he had made payments which the creditor refused to enter on the judgment. The procedure under the motion is clearly stated in the statute. We do not think it was intended to embrace a controversy like this, growing out of an independent contract, which may be the subject of another action. The statute says the remedy by motion may be had "when any payment has been made on any judgment." The defendant has paid nothing. On his own showing, he has entered into an entire con tract, 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.

CLARK, C. J. (concurring). The statute of frauds (Rev. § 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.

It would seem clear upon the reason of the thing that, as a verbal contract for the payment of money is good and enforceable when given for all other considerations, there is no cause to construe the statute of frauds to make it invalid when the consideration is realty. The mischief intended to be remedied by the statute of frauds is solely the obtaining an interest 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.

In 29 A. & E. Enc. (2d 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, and Burke v. Wilbur, 42 Mich. 328, 3 N. W. 861, 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. Mosbaugh, 19 Ind. App. 105, 49 N. E. 178; Taylor v. Russell, 119 N. C. 30, 25 S. E. 710; Harty v. Harris, 120 N. C. 411, 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; Rogers v. Lumber Co., 154 N. C.—, 69 S. E. 788; 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.

WALKER. J. (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 enforceable 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, 15 S. E. 197; Rice v. Carter, 33 N. C. 298; Choat v. Wright, 13 N. C. 289; Drake v. Howell, 133 N. C. 168, 45 S. E. 539. 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 the statute. He occupies the 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, 49 S. E. 105 (107 Am. St. Rep. 474), 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 contracts 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. Code, § 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. Gwathney v. Ca-son, 74 N. C. 5, 21 Am. Rep. 484, especially at page 10 of 74 N. O., 21 Am. Rep. 484, where Rodman, J., states the rule; Miller v. Irvine, 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 ; Mayer v. Adrian, 77 N. C. 83. Many other cases could be cited from our reports in support of the 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...