Layton v. Godwin

• Decision Date: 24 October 1923
• Docket Number: (No. 291.)
• Citation: Layton v. Godwin, 119 S.E. 495, 186 N.C. 311 (N.C. 1923)
• Court: North Carolina Supreme Court
• Parties: LAYTON. v. GODWIN.

119 S.E. 495

(186 N. C. 311)

LAYTON.

v.GODWIN.

(No. 291.)

Supreme Court of North Carolina.

Oct. 24, 1923.

Appeal from Superior Court, Cumberland County; Devin, Judge.

Action by J. G. Layton against E. J. Godwin. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

H. L. Godwin and Clifford & Townsend, all of Dunn, for appellant.

Chas. G. Rose, of Fayetteville, and Godwin & Williams, of Dunn, for appellee.

STACY, J. Plaintiff brings this suit to recover of the defendant the purchase price of certain lands, alleged to have been sold at public auction, and at which sale the defendant became the last and highest bidder. Recovery is resisted upon the ground that the contract is not in writing. The court below was of opinion that certain letters, written by the defendant and in evidence on the trial, were sufficient to meet the requirements of the statute (C. S.§ 988), which provides:

"All contracts to sell or convey any lands, * * * or any interest in or concerning them, * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized."

See Hall v. Misenheimer, 137 N. C. 183, 49 S. C. 104, 107 Am. St. Rep. 474.

The only question presented for our consideration is the correctness of his honor's ruling in regard to the sufficiency of the writings signed by the defendant. These letters do not appear in the statement of case on appeal. Hence we cannot say the ruling was erroneous. The presumption is otherwise. The burden is on the appellant to show error, and none has been made to appear. In re Ross, 182 N. C. 477, 109 S. E. 365. See, also, 1 Michie, Digest, 695, and cases there cited under title "Burden of Showing Error."

When the appellant served his statement of case on appeal, instead of setting out the letters which he deemed material, he simply directed:

"Here clerk will copy such letters of the...