Grantham v. Grantham
| Citation | 171 S.E. 331,205 N.C. 363 |
| Decision Date | 01 November 1933 |
| Docket Number | 209. |
| Parties | GRANTHAM v. GRANTHAM et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Wayne County; Moore, Special Judge.
Suit by George L. Grantham against Luther D. Grantham and others. From a judgment for plaintiff, defendants appeal.
New trial.
This is a suit to enforce the specific performance of a contract alleged to have been made between the plaintiff and Mrs Edith W. Grantham.
Mrs Grantham died intestate on the 1st day of December, 1930 Luther D. Grantham and George L. Grantham are the administrators of her estate; William U. Grantham is her surviving husband; George L. Grantham, the plaintiff, is her son; the other defendants are her heirs at law.
In his complaint the plaintiff alleges that in May, 1919, Edith W. Grantham made a contract with him by the terms of which she promised to devise and bequeath to him all the property, real and personal, which she might own at the time of her death, in consideration of the plaintiff's agreement to remain with her during the remainder of her life, to look after property and affairs, and to contribute such amount as should be necessary for her support and maintenance; that she then expected to receive certain property from her two brothers which was to be included in her will; that she did receive certain property from them; that her contract with the plaintiff was ratified and reiterated; that on May 24, 1923, she entered into another specific contract with the plaintiff to devise and bequeath to him all the property which she received from her brothers, in consideration of the plaintiff's agreement.
The plaintiff further alleges that he complied with the terms of the contract and expended large sums of money, not only in support of his mother, but in payment of losses sustained in the operation of her farms and the debts arising therefrom, and that his mother, possibly through inadvertence, failed to comply with the terms of the contract, and failed to devise and bequeath him her property, including the property derived from the estate of her brothers.
The relief demanded is a decree for specific performance and other relief, and to this end that the defendants be declared trustees for the plaintiff of property owned by Edith W. Grantham at the time of her death, and that they be directed to make conveyance thereof to the plaintiff.
The defendants deny all allegations in reference to the execution of the alleged contract, including those relating to its renewal or ratification; deny that the plaintiff looked after his mother's property and affairs or contributed anything for her support and maintenance; and aver that his mother took care of and supported him.
At the trial the jury returned the following verdict:
The court adjudged that the plaintiff is the equitable owner of the several tracts of land described in the complaint after the life estate of William U. Grantham, that the defendants hold the remainder in trust for the plaintiff, and that the judgment operate as a conveyance to the plaintiff of the right, title, and interest of the defendants therein subject to the life estate of William U. Grantham, and that the judgment be recorded in the office of the register of deeds.
The defendants excepted and appealed upon assigned error.
J. Faison Thomson, Hugh Brown Campbell, and D. H. Bland, all of Goldsboro, for appellants.
Kenneth C. Royall and N.W. Outlaw, both of Goldsboro, for appellee.
The plaintiff instituted this action against the heirs of Edith W. Grantham specifically to enforce her alleged agreement to leave him at her death all her property in consideration of his services in supporting her and supervising her business affairs, subject to the life estate of her husband as tenant by the curtesy. As the contract was not reduced to writing and all the property in controversy is real estate, the question first arising is whether specific performance will be decreed.
The fourth section of the statute of frauds (29 Car. II, c. 3) provides that no action shall be brought to charge any person "upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them *** unless the agreement upon which such action is brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." In Smith v. Williams, 5 N. C. 426, 431, 4 Am. Dec. 564, it has held that this statute (enacted in 1676 or 1677), being posterior to the date of the charter under which the state was settled, did not become effective here until 1715, when the common law was declared to be in force (C. S. § 970); the statute with additional clauses subsequently enacted (1819) appearing in chapter 50 of the Revised Statutes (C. S. § 988).
It is not questioned that a written contract to devise real property may be valid when supported by a sufficient consideration or that it may be enforced in a court of equity. Price v. Price, 133 N.C. 503, 45 S.E. 855; Stockard v. Warren, 175 N.C. 283, 95 S.E. 579. But we are not aware of any decision of this court to the effect that a parol contract to dispose of real estate in a particular way or to a particular person is subject, upon objection, to the equitable right of specific performance after the death of the promisor. In East v. Dolihite, 72 N.C. 562, in an opinion delivered by Rodman, J., it was said that a person may make a contract to devise his lands in a particular way, and that a court of equity in a proper case will enforce specific performance; also that in those states in which the doctrine of part performance is admitted such contracts will be enforced, even though not in writing, when the enforcement is necessary to prevent fraud. The doctrine of part performance, however, has no place in our jurisprudence, and will not dispense with the necessity of a writing. Albea v. Griffin, 22 N.C. 9; Allen v. Chambers, 39 N.C. 125; Ballard v. Boyette, 171 N.C. 24, 86 S.E. 175. The logical result was a train of decisions declaring that a parol contract for the conveyance of land cannot be enforced to the extent of decreeing a specific execution of the agreement. Smith v. Smith, 60 N.C. 581; Hall v. Fisher, 126 N.C. 205, 35 S.E. 425; Davison v. Land Co., 126 N.C. 704, 36 S.E. 162; Davis v. Yelton, 127 N.C. 348, 37 S.E. 464; Shepherd v. Refining Co., 198 N.C. 824, 153 S.E. 259. Not only this; the plaintiff cannot by the doctrine of estoppel in pais successfully claim that he is cestui que trust and that the defendants are trustees of the estate. This contention was made in East v. Dolihite, supra, to which the court replied: And it may be said by analogy of reasoning that a decree for the specific enforcement of an unenforceable agreement to devise real property would be equivalent to a supersession of the statute (C. S. § 4131), which provides that no last will or testament shall be sufficient in law to convey or give any estate unless it shall have been written in the testator's lifetime, signed by him, and subscribed by witnesses.
The appellee insists that a contract to devise real property is not within the statute of frauds and that Hager v. Whitener, 204 N.C. 747, 169 S.E. 645, is authority for this position. We cannot concur in either proposition. Hager brought suit, not for specific performance, but for recoupment of the loss he had suffered by the intestate's failure to comply with his contract. Under the facts of that case, the plaintiff had a remedy which was not defeasible by pleading the statute of frauds. The court merely observed that the statute of frauds was not applicable to the facts of that case.
It is further contended that, if the agreement is within the statute, the defendants waived their right to raise the question by not objecting to the introduction of evidence relating to the contracts. To this there are two answers. The defendants denied the execution of the alleged contracts, or either of them, and the denial raised issues which were submitted to the jury. In Barnes v. Teague, 54 N.C 278, 62 Am. Dec. 200, it was held that this plea or denial extends as well to the discovery as to the performance of the parol agreement, and that a defendant may, while he admits or confesses the parol contract, protect himself under the act from its performance by pleading the statute; and in Henry v. Hilliard, 155 N.C. 373, 71 S.E. 439, 442, 49 L. R....
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