Henry v. Hilliard

• Decision Date: 31 May 1911
• Citation: 155 N.C. 372,71 S.E. 439
• Parties: HENRY et al. v. HILLIARD et al.
• Court: North Carolina Supreme Court

155 N.C. 372

71 S.E. 439

HENRY et al.

v.HILLIARD et al.

Supreme Court of North Carolina.

May 31, 1911.

1. Frauds, Statute of (§ 152^*)—Pleading Statute as Defense—Necessity.

A vendee under a parol contract in regard to land, after payment of the purchase price, can compel the execution of a deed to him, where the statute of frauds is not pleaded, or the contract denied, and there is no objection to the evidence.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 363-366; Dec. Dig. § 152.*]

2. Frauds, Statute of (§ 152*)—Pleading Statute of Defense—Necessity.

In an action to compel a conveyance of land under a parol contract, after payment of the purchase price, the party to be charged may simply deny the contract, or deny it and set up a different contract, and avail himself of the statute of frauds without pleading it by objecting to the evidence, or he may admit the contract and plead the statute; and in either case the contract cannot be enforced.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 363-366; Dec. Dig. § 152.*]

Appeal from Superior Court, Haywood County; Cline, Judge.

Action by W. L. Henry and others against W. L. Hilliard and others. From a judgment overruling exceptions to the report of a referee, and holding that the defendant String-field was not entitled to a conveyance of land, defendant Stringfield appeals. Reversed.

This is an action instituted a number of years ago by certain of the heirs of James R. Love, deceased, against W. L. Hilliard, the then sole surviving executor of the lastwill and testament of said Love, by which will certain lands of the said Love, of which the land in question is a part, were devised to his executors to be sold and the proceeds divided among his heirs at law. Some time after the institution of the action, Hilliard died, whereupon all the heirs at law of the said Love were made parties, and R. D. Gilmer was appointed by the court trustee, with all the power and authority of an executor under the will. During his executorship, W. L. Hilliard employéd the appellant W. W. Stringfield as a surveyor for the purpose of locating and surveying the lands belonging to the estate, and agreed with the said Stringfield that he, the said Hilliard, would sell and convey to him the two tracts of land mentioned in the petition of Stringfield at the price of $11.25 per acre, the purchase price to be paid by Stringfield by services as surveyor. The land referred to in this agreement was immediately surveyed, and String-field entered into possession, and has been in possession thereof for 20 years. After the death of Hilliard, Gilmer, trustee, recognized the claim of Stringfield, and continued to employ him as surveyor. At Fall term, 1907, of the superior court for Haywood county, Mrs. M. E. Hilliard, one of the heirs at law of James R. Love, deceased, moved in the cause to require R. D. Gilmer, trustee, to account; and at the same time appellant W. W. Stringfield filed his petition, set out in the record, alleging his contract with Hilliard for the land in question, and that the purchase money had been paid in full, and praying that the court direct the trustee to execute to him a deed for the land. To this petition no answer was filed by any of the parties, and the whole matter, including the Stringfield claim, was referred by consent. It was admitted that the said Hilliard had authority to make said contract with said Stringfield, and that the whole of the purchase price for the land had been paid. The original and supplemental report of the referee and the exceptions thereto are as follows: "The report of the undersigned referee would respectfully show that pursuant to the order of reference made at Fall term,

1907, of this court, a copy of which is hereto attached, I designated the 23d day of May,

1908, at 1 o'clock p. m., as the time when the bearing the matters referred to me would begin at the courthouse at Waynesville, N. C., and gave notice by mail to the parties as I was advised and as shown by the first page of the evidence. The various hearings were had and the adjournments taken as therein noted."

Claim of W. W. Stringfield: "The referee finds as a fact: (1) That W. W. Stringfield began to act as agent for Dr. Hilliard, former trustee, in 1893 or 1894, and continued after the appointment of R. D. Gilmer as trustee in 1891. That he also acted as surveyor whenever needed, and performed various services in and about the Love lands in both of said capacities. (2) That during the lifetime of W. L. Hilliard, former trustee, the said Stringfield made a verbal contract for the purchase of the two lots of land known as exceptions Nos. 70 and 71, in the deed from R. D. Gilmer, trustee, to S. A. Jones, of the boundaries therein given, and that the contract of purchase was never reduced to writing. That the heirs at law and the trustee have recognized the said Stringfield's claim to the said parcels of land, and that he has been in possession of the same for at least 20 years, and that the same were excepted from the deed to S. A. Jones by reason of and because of the said Stringfield's claim thereto. That on the 26th day of August, 1908, counsel for Mrs. M. E. Hilliard sent to the referee a paper writing, which is marked 'Exhibit No. 203, ' in which it was stated as follows: 'Mrs. Iiilliard will not oppose a report to the effect that String-field is the owner of the land excepted in the Jones deed as sold to Stringfield—rather she will consent to such a decree.' And on the same day R. G. A. Love and Maggie L. Marshall, by her attorney in fact, handed to the referee a paper writing in the following words and figures: 'We hereby give our consent for Maj. W. W. Stringfield to be allowed his amount in full as filed with you and find as a fact W. W. Stringfield is entitled to the deed for 70 and 71 exceptions in the deed from R. D. Gilmer, trustee, to S. A. Jones for lands in Jackson county.' This is also marked 'Exhibit No. 203.' And I concluded as a matter of law that W. W. String-field is not entitled to a deed for the exceptions Nos. 70 and 71 in the Jones deed, the contract of purchase thereof not having been in writing and the former trustee with whom said contract is claimed to have been made being dead; but in good conscience and equity the said Stringfield is entitled to a judgment for $1,150.93, to be paid out of the funds now on hand. Tour referee herewith sends all the evidence taken by and before him and the papers filed with him, and respectfully reports to the court that his actual expenses have been paid except the sum of $7 for the past two trips he made to Waynesville, and that $100 has been paid to him as a part of his allowance. Signed in triplicate. Filed Oct. 4th, 1910."

Supplemental Report: "The referee desires to submit the following supplemental report as to claim of W. W. Stringfield to that heretofore filed by him in the case, deeming it advisable to do so, because additional facts may be necessary, and that in his conclusions of law he finds that an error has been made as follows: Add to findings of fact No. 2 the words, 'and fully paid for the same at the dates shown in Exhibit No. 2, in the...