Davis v. Lovick
| Decision Date | 10 April 1946 |
| Docket Number | 382 |
| Citation | 37 S.E.2d 680,226 N.C. 252 |
| Parties | DAVIS v. LOVICK et al. |
| Court | North Carolina Supreme Court |
The plaintiff divided his land amongst his children, including the defendant Laura Davis Lovick, an illegitimate daughter, conveying to each of them by deed in fee the remainder after reserving to himself and wife a life estate. The wife is now dead. He alleges that by parol agreement he rented his life estate in their respective shares to each of his children, upon a rental of $100 per year, with the proviso that the rental should be increased as his necessities might require; and the defendant Laura Lovick went into the possession of the premises, and with her husband has remained there since, sometimes subrenting to her co-defendant Jerome Lovick, but remaining in control.
Plaintiff alleges that he notified the defendant Laura Lovick that because of his increased need, the rent for the year 1944 and subsequent years would be increased, but that said defendant notified him that she would not pay him any additional rental. Thereupon, the plaintiff demanded possession of the land, which possession was refused. The defendant Laura Davis Lovick and her co-defendants replied to the complaint denying that the rental agreement made at the time Laura Davis Lovick was put in possession of the premises contained any provision for increase of rent, admitting, however, that she held by deed from the plaintiff, subject to his life estate, and that she went into possession under contract of rental for the entire duration of plaintiff's life estate in the land. It is admitted that the rental contract was in parol.
The plaintiff replied, reiterating his first declaration as to the terms of the parol rental contract, and pleading the statute of frauds. G.S. s 22-2.
Leaving out of consideration extraneous matter immaterial to the issue, the evidence of the plaintiff recapitulates the allegations of his pleading. The defendants offered no evidence, but at the close of plaintiff's evidence moved for judgment of nonsuit, which was allowed. The plaintiff appealed.
Whitaker & Jeffress, of Kinston, for plaintiff, appellant.
J A. Jones, of Kinston, for defendants, appellees.
The decision in this case turns upon the availability to the plaintiff of his plea of the statute of frauds against the parol rental contract upon which defendants rely for their defense in retaining possession of lands reserved by plaintiff in his life estate. The defendant appellees argue that the plaintiff has asserted the parol contract, relies upon it for his cause of action and relief, and is therefore estopped from pleading the statute or obtaining any relief through it. We are of the opinion the position is not well taken.
The plaintiff brought his action in the Superior Court after dismissal of a summary proceeding in the Court of a Justice of the Peace based on the supposed rental agreement. The defendants' counsel, seeming to have correctly divined the nature of the action, made no plea to the jurisdiction, which should have resulted in dismissal if their present position is sound.
However informal it may be--and we do not criticise it in that respect--the complaint is good in an action of ejectment, and, independently of the rental contract, sets up all the essentials for recovery in such an action when supported by proof. In point of fact, the defendants admit all the allegations of the complaint material to plaintiff's recovery and rely solely on the parol contract.
The plea of the statute is available to any person against whom it is sought to enforce a parol agreement obnoxious to its terms, plaintiff or defendant. He may waive it or invoke it as he sees fit--Allison v. Steele, 220 N.C. 318, 17 S.E.2d 339--but he...
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