Fortiscue v. Crawford

• Decision Date: 24 February 1890
• Citation: Fortiscue v. Crawford, 10 S.E. 910, 105 N.C. 29 (N.C. 1890)
• Court: North Carolina Supreme Court
• Parties: Fortiscue et al. v. Crawford.

10 S.E. 910

(105 N.C. 29)

Fortiscue et al.

v.Crawford.

Supreme Court of North Carolina.

Feb. 24, 1890.

Trial—Issues—Agreements Relating to Land— Parol Evidence.

1. Under Code Civil Proc. N. C. § 391, providing that "issues arise upon the pleadings where a material fact or conclusion of law is maintained by the one party and controverted by the other, " it is error to submit an issue concerning which there are no allegations in the pleadings.

2. An agreement to convey land cannot be shown by parol evidence.

3. Where, in an action to recover land, defendant alleges that he is in possession under a parol contract of sale, and plaintiffs deny any agreement, the only issue is as to amount of purchase money paid by defendant, and the value of rents, profits, and betterments.

4. Paper writings in the following forms:

"Charles Crawford,

Land, $125

Paid, $ 61 58

Balance due, $ 63 42

"January 1, 1875.

Gilbert Hale;" and, "$10.68.

"Received of Charles Crawford $10.68, on account of his land, balance due him in settlement this date, March 23, 1876. Gilbert Hale, "—are too vague and indefinite to authorize the admission of parol evidence to locate the land.

5. A written description of the land, with nothing on its face referring to or connected with such writings, cannot be connected therewith by parol.

Appeal from superior court, Beaufort county; E. T. Boykin, Judge.

Action to recover land by W. H. Fortiscue and wife, Appie V., and others, against Charles Crawford. Defendant claimed the premises by virtue of a parol contract of sale from Gilbert Hale, deceased, under whom plaintiffs claimed. The following were the issues submitted: " (1) Did Gibert Hale contract and agree, in 1872 or 1873, to convey to the defendant the land described in the complaint, and did he have the same surveyed, marked, and defined, and put the description thereof in writing; and has the defendant been in possession under said contract up to the beginning of this action? Answer. Yes. (2) Did Gilbert Hale execute and deliver to the defendant the paper writing set forth in the answer? A. Yes. (3) What amount did the defendant agree to pay Gilbert Hale for the land in controversy?" A. $125. (4) What amount, if any, is due the said Hale on account of the purchase money for the land? A. $10. " Code Civil Proc. N. C. § 391, pro vides that "issues arise upon the pleadings when a material fact or conclusion of law is maintained by the one party and controverted by the other." Judgment for defendant, and plaintiffs appeal.

J. H. Small and W. B. Rodman, Jr., for appellants.

Chas.F. Warren, tor respondent.

Clark, J. The issues arise upon the pleadings. Code, § 391; Wright v. Cain, 93 N. C. 296. There are no allegations in the pleadings which even suggest the matters set out in the first issue, and an issue cannot be raised by evidential facts. Miller v. Miller, 89 N. C. 209. It was error to submit it to the jury.

The defendant alleges in his answer that "Gilbert Hale, ancestor of, plaintiffs, in 1874 contracted by parol to sell said land to him for $125;" and that he made sundry payments, and took therefor the receipts which are set out in the answer. All this is denied by plaintiff in bis replication. Parol testimony was incompetent to prove the alleged agreement. Holler v. Richards, 102 N. C. 545, 9 S. E. Rep. 460. The contract alleged in the answer being denied, the defendant must produce legal evidence thereof, and an agreement to convey land cannot be proven by parol proof. Allen v. Chambers, 4 Ired. Eq. 125; Gulley v. Macy, 84 N. C. 434; Bonham v. Craig, 80 N. C. 224. As the law requires such contract to be in writing, the writing is not only the best, but the only admissible, evidence. Morrison v. Baker, 81N. C. 76.

The defendant offered the following paper writings, which were set out in the answer. To their admission in evidence the plaintiffs excepted:

"Charles Crawford,

Land, $125

Paid, $ 61 58

Balance due, $ 63 42

"January 1st, 1875.

Gilbert Hale." " $10.08.

"Received of Charles Crawford ten dollars and sixty-eight cents, on account of his land, balance due him in settlement this date, Marsh 23, 1876.

" Gilbert Hale. "

These receipts were too vague and indefinite to admit parol testimony to locate the land. Breaid v. Munger, 88 N. C. 297; Plummer v. Owens, Busb. Eq. 254; Capps v. Holt, 5 Jones, Eq. 153; Murdock v. Anderson, 4 Jones, Eq. 77. The defendant endeavored to help out the insufficiency of the description by testimony of one Church Moore, which was that Hale had the lines run and chopped, and that Robinson, the surveyor, wrote out a description of the land by direction of Hale, signed the same, and delivered it to Hale. This paper has been lost; but, admitting proof of its contents as secondary evidence, it was a mere description of the land, with nothing on its face referring to or connecting it with the receipts above set out. To connect it with them by parol evidence is...