Carter v. Carter

• Decision Date: 19 October 1921
• Docket Number: 282.
• Parties: CARTER v. CARTER ET UX.
• Court: North Carolina Supreme Court

108 S.E. 765

182 N.C. 186

CARTER v. CARTER ET UX.

No. 282.

Supreme Court of North Carolina

October 19, 1921

Appeal from Superior Court, Columbus County; Cranmer, Judge.

Action by Fannie Carter against Sam C. Carter and wife. From a judgment of dismissal, plaintiff appeals. Error, judgment set aside, and cause remanded.

When the purchaser has entered into possession, paid the purchase money, and made improvements on the faith of vendor's parol promise to convey, which he refuses to do, pleading the statute of frauds, the purchaser may recover, in addition to the price paid, compensation for his improvements to the extent that they have enhanced the value of the land.

This action was brought to recover the purchase money paid by plaintiff to the defendants upon a parol contract for the purchase of land which the latter have repudiated, and refused to convey to the plaintiff, and also to recover the amount by which the land was enhanced in value by certain improvements and betterments placed by the plaintiff upon the tract of land so sold to her, as will appear from the complaint, which is as follows:

"(1) That the defendants were prior to the ____ day of October 1919, the owners in fee simple of the following described tract of land: In Columbus county, state of North Carolina adjoining the lands of ______ and others, and bounded as follows, viz.: Beginning at a stake the second corner of lot No. 7 and runs north 45 degrees east the line of lot No. 8, to the corner of Dunn swamp the fork of it and alley bay, thence up said bay to a black gum bay by the public road Manaduke Powell's corner, thence with the road to lot No. 7, thence with it south 70 degrees east to the beginning, containing 43 acres, more or less, and being lot No. 9 of the division of the land of James Dyson, deceased excepting two acres already conveyed, and for a more perfect description reference is hereby made to said division and deed made by Precilla Dyson on the 7th day of June, 1888, to Samuel Merritt, and recorded July 13, 1887 in Book N-N of Deeds at page 247, records of Columbus county, in the office of register of deeds, and which is hereby referred to and made a part of this deed, which see for further description of this land.

(2) That the plaintiff on the ______ day of October, 1919 purchased from the defendants above named the tract of land described in paragraph 1 of this complaint at the price of $1,750, and paid to the defendants the whole amount of said purchase price. The defendants at the time they received said purchase price promised, agreed, and contracted to execute to the plaintiff a deed for said tract of land.

(3) That this plaintiff, immediately after she had purchased said tract of land and paid the whole amount of the purchase price therefor, erected a dwelling house on the land, which cost her $925, and also erected one tobacco barn thereon, at the cost of $350, making a total of $1,275 which the plaintiff has spent in making improvements on said tract of land, making a total including the purchase price of $3,025, which the plaintiff has expended on the tract of land.

(4) That the plaintiff took possession of said tract of land on the ______ day of January, 1920, and has been living on the same, occupying the house she erected thereon as a dwelling.

(5) That on the 5th day of March, 1920, the plaintiff had a deed in fee simple prepared from Sam C. Carter and wife, Lillian Carter, to the plaintiff, conveying to her the tract of land described in paragraph 1 of this complaint, and presented the same to Sam C. Carter and wife, Lillian Carter, and requested them to execute it in due form and according to law.

(6) That Sam C. Carter and wife, Lillian Carter, defendants above named, failed and refused to execute the deed, and doth still refuse to execute the same to the plaintiff, in violation of their promise and agreement to convey the same.

(7) That the defendants are now cutting and removing timber from the tract of land, and are threatening to continue to cut and remove timber therefrom, to the plaintiff's great damage of $300.

(8) That the plaintiff has caused a summons to issue from the superior court of Columbus county in an action entitled as above.

(9) That the defendants are insolvent as this plaintiff is informed, believes, and so alleges.

Wherefore the plaintiff prays the court that an order be made restraining the defendants, their agents, servants, and employees, from cutting and removing any timber from said tract of land, or in any manner committing acts of trespass thereon or from going upon said tract of land, and for such other and further relief as to the court may seem proper."

Donald McRackan, of Whiteville, and S. Brown Shepherd, of Raleigh, for appellant.

WALKER, J. (after stating the facts as above).

We are of the opinion that there was error in the judge's ruling. The plaintiff had entered into a parol contract with the defendants by which it was stipulated that the defendants should convey to her a certain tract of land, containing 43 acres, more or less, and particularly described in the complaint, upon the payment by the plaintiff of the purchase money, which was $1,750, and which was duly paid by the plaintiff, believing that defendants would comply with their promise and convey the land, and that, relying upon the defendants' promise, the plaintiff entered into the possession of the land, and erected valuable improvements thereon which reasonably cost $1,275. The plaintiff caused a proper deed to herself for the premises to be prepared, which was sufficient in form and substance to convey the estate promised by parol to be conveyed by the defendants to her, and defendants refused to execute the same, and now deny that the contract was ever made, pleads the statute of frauds, and claims ownership of the land, and all this notwithstanding they have the purchase money in their pocket. We must be governed in our decision by the allegations of the complaint, on which our statement of the facts is based, the court having dismissed the action upon the pleadings, and certain alleged admissions, which do not, in our opinion, affect the question, at this stage of the case, and, when so controlled we must hold that such a transaction does not look well for the defendants, and upon it the judgment of the lower court is not sustained by the law, and certainly not by equity.

We have solemnly adjudged in this court, more than once, that where there is a parol contract to convey land, the full amount of the purchase money is paid, the vendee enters into possession, and the vendor afterwards repudiates the contract by refusing to make a deed for the land, the purchaser may recover the price of the land so paid by him (Durham Land, etc., Co. v. Guthrie, 116 N.C. 381, 21 S.E. 952) and further that where the vendor elects so to repudiate his parol contract by refusing to convey and sets up the statute of frauds, the purchaser may recover the amount paid by him for the land under his prayer for general relief, although the action be for specific performance (Wilkie v. Womble, 90 N.C. 254 [cited in the note, at page 879, of 19 L. R. A.]; Murdock v. Anderson, 57 N.C. 77; Ellis v. Ellis, 16 N.C. 398). Under the old system, when the courts of law and...