Clark v. Butts

• Decision Date: 13 October 1954
• Docket Number: No. 19,19
• Court: North Carolina Supreme Court
• Parties: Annie CLARK v. Johnnie BUTTS and Mary Trafton Butts.

Page 885

83 S.E.2d 885

240 N.C. 709

Annie CLARK v. Johnnie BUTTS and Mary Trafton Butts.

No. 19

Supreme Court of North Carolina.

Oct. 13, 1954

M. B. Simpson, Jr., Elizabeth City, for plaintiff-appellee.

J. W. Jennette, Elizabeth City, for defendants-appellants.

WINBORNE, Justice.

The assignments of error, determinative of this appeal, as brought forward and discussed together in brief of attorney for defendants appellants, are based upon exceptions Numbers 1 and 2 to denial of their motions for judgment as of nonsuit aptly made, and upon exception Number 6 to the refusal of the court to give peremptory instruction for negative answer to third issue.

In this connection, taking the evidence offered upon trial in Superior Court in the light most favorable to plaintiff, and giving to her the benefit of every reasonable intendment thereon, and every reasonable inference to be drawn therefrom, there appears to be sufficient evidence, in the light of applicable principles of law, to support the verdict of the jury upon each and all of the issues submitted, and decisions of this Court support the judgment on the verdict.

The principle of law enunciated in East v. Dolihite, 72 N.C. 562, by Rodman, J., that 'No doubt a person may make a binding contract to devise his lands in a particular way, and a court of equity in a proper case will enforce in effect a specific performance of the contract' has been repeated and applied by this Court in numerous cases. See Price v. Price, 133 N.C. 494, 45 S.E. 855; Stockard v. Warren, 175 N.C. 283, 95 S.E. 579; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Chambers v. Byers, 214 N.C. 373, 199 S.E. 398; Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852.

In Stockard v. Warren, supra [175 N.C. 283, 95 S.E. 580], Clark, C. J., writing for the Court reiterates the above quotation from the East case and continues with this quoted language: "It is settled by a line of authorities which are practically uniform that while a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent, and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it, by seizing the property which is the subject-matter of the agreement and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.' Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann.Cas.1914A, 394.'

And in Chambers v. Byers, supra [214 N.C. 373, 199 S.E. 401], in opinion by Clarkson, J., it is declared: 'Persons sui juris have a right to contract if it is not contrary to law or public policy.' There as here the agreement was in writing and did not come within the ban of the statute of frauds. C.S. § 988, now G.S. § 22-2.

Indeed, the contract here involved is 'in writing and signed by the party to be charged therewith', and it is proven, probated and registered, all in conformity with statutory requirements. G.S. §§ 47-1, 47-12, 47-17, 47-18 and 47-37. And a contract to convey land for more than three years, so proven, probated and registered, is valid to pass the land, as against creditors or purchasers for a valuable consideration, from the donor, bargainor, or lessor, from the registration thereof within the county where the land lies. G.S. § 47-18. The object of such registration is to give notice to creditors and purchasers for value, or others whose rights might otherwise be seriously and unjustly impaired by the deed. See ...