Appeal
from superior court, Cabarrus county; CONNOR, Judge.
DAVIS
J.
Civil
action tried before CONNOR, J., at January term, 1888, of the
superior court of Cabarrus county. (1) The plaintiff alleged
that in 1881 he conveyed by deed in fee to the defendant a
tract of land mentioned in the complaint for the sum of
$5,000. (2) That at the time of the execution of the deed
and before, it was contracted and agreed that the plaintiff
would take $5,000 for the land, provided the defendant would
pay to him one-half of the proceeds for which the mineral
interest of said land should be sold, if the defendant,
during his life-time, should sell said mineral interests. The
defendant agreed to these terms, and the deed was executed
without embracing them, but subject to them. (3) That in 1883
the defendant sold the land and mineral interests to W. H.
Orchard for $6,000, and received the money therefor; the
mineral interests for $1,000 and the land for $5,000. The
plaintiff demanded of the defendant the one-half of the
proceeds of the sale of the mineral interests, which was
refused, and this action is brought to recover it. The
defendant admits the purchase of the land by him at the price
of $5,000, but denies the other allegations. The following
issues were submitted to the jury, without objection:
"(1) Did the plaintiff and defendant contract before and
at the time of the execution of the deed from the plaintiff
to the defendant, the deed being made subject to the
contract, that plaintiff should take $5,000 for the land and
the defendant would pay plaintiff one-half of the proceeds
for which the mineral interest in said land should be sold,
if defendant should during his life-time sell said mineral
interest? (2) Did the defendant, on or about the 11th day of
April, 1883, sell the mineral interest? And if so, what was
the price paid therefor? (3) What sum of money, if any, is
due from the defendant to the plaintiff?"
George
W. Michael, the plaintiff, was introduced in his own behalf
and testified: "I sold the land to the defendant March
15, 1881, for five thousand dollars." The
plaintiff's counsel then proposed to ask the witness the
following question: "Was there any agreement made at the
time in respect to the proceeds of the sale of the mineral
interest in the lands, which was not embraced in the deed?
Answer. There was. Was such agreement in writing? A. It was
not. What were the terms of said agreement?" Defendant
objected, for that the agreement proposed to be proven was
concerning an interest in land, and could only be shown by
some writing signed by the defendant. Objection overruled.
Exception by defendant. "The agreement was that I was to
have one-half of the proceeds of the sale of the mineral
interest in the land if sold during my life-time. The
agreement was made in Mr. Puryear's office. He drew the
paper. I paid him for it. On the same day, and after the deed
was made, the defendant said that he would attend to the
sale. We agreed that Mr. Richards should go, and show the
mine to any person who might wish to buy. I received a letter
from Mr. Richards about the sale. After I heard that
defendant had sold, I came to North Carolina, and demanded
pay for my share of the proceeds of the mineral interests.
The defendant declined to pay it. I told him that he knew
that it was a fair contract. He said he only got one thousand
dollars for the mineral interests. He sold to Captain
Orchard. He said that he never would pay me; that he would
keep it in court as long as he lived. The agreement was that
Richards and Foil were to sell for our benefit." The
plaintiff's counsel then proposed to read a letter from
Richards to plaintiff, and Richards was called, and testified
that he signed the letter, and Foil, the defendant, wrote it.
The defendant objected. Objection overruled. Defendant
excepted. The following letter was then read for the purpose
of corroborating the witness:
"CONCORD,
NORTH CAROLINA, May 21, 1881.
"Mr.
George W. Michael--DEAR SIR: I mailed you a letter some
three weeks ago, as to selling the mining property on
Foil's plantation, and have
not rec'd an answer yet, nor has Mr. Foil. I directed
your letter to Ashboro, Ill.; so I write again. If you want
to sell your interest, I am of the opinion you can do so if
you offer it at a low price. I think Mr. Foil is out of
patience, as well as myself, as you have not written to
either of us. Our plan is to make hay while the sun shines.
Several parties have been here, and will not consider any
sale until I hear from you. Have a speedy answer, or all be
go-by. Put your price low down if you want to sell,--no
mistake. Foil is ready to sell at any price to make a sale.
Let me know your price, at a low rate at that. With my best
wishes to you and family, I remain,
"Yours,
truly, WILLIAM RICHARDS.
"Direct
your letter: William Richards, Concord, N. C., care of A.
Foil."
Mr. Hal
Puryear was then introduced by the plaintiff, and testified:
"I drew a deed for the plaintiff to the defendant. It
was drawn in my office. The first time I heard of the matter
Mr. Foil met me, and said that he was about to buy some land
from Michael; that they wanted me to draw the deed. They came
to my office, and I did so. Mr. Michael paid me." The
plaintiff then proposed to ask the witness: "What took
place between the parties at that time, in your
presence?" The defendant objected, for that the witness,
an attorney at law, was in the employment either of himself,
or the plaintiff and himself, and that the conversation in
his presence was, as to him, confidential. The objection was
overruled. Defendant excepted. "I heard the parties say
that, when the land was sold, the plaintiff was to have
one-half of the proceeds of the sale of the mineral interest.
This is impressed on my memory. I heard it twice. That was
their agreement. Michael wanted to retain one-half of the
mineral interest, and insert a reservation to that effect in
the deed. This was objected to by Foil. I then suggested a
collateral agreement in writing, and wrote it. Foil refused
to sign it. The agreement was in parol that Michael was to
have one-half of the proceeds of the sale of the mineral
interest." The plaintiff then put in evidence the bond
for title from the defendant, Foil, to W. H. Orchard for the
mineral interest in said land, dated April 2, 1883, by the
terms of which he was to convey to said Orchard the mineral
interests, with the timber on 25 acres, and other privileges
not material to be stated, for the sum of $2,000. On the bond
is the following indorsement:
"Received
of William Treloar the sum of one thousand dollars, for
one-half interest in the within bond, and a second bond
covering the mineral interest of said tract; the said bond
bearing even date with this instrument.
"April
2, 1883. W. H. ORCHARD.
"On
the payment of one thousand dollars more I agree to
transfer all of my right, title, and interest in the within
bond, as well as the bond mentioned above.
"April
2, 1883. W. H. ORCHARD."
The
plaintiff then put in evidence the bond for title to the said
land from the defendant, Foil, to Orchard, dated April 2,
1883, in which he enters into an obligation to convey the
land to the said Orchard in fee for the sum of $6,000. The
plaintiff then introduced a deed from Foil and wife to W. H.
Orchard, dated April 18, 1883, conveying to the latter the
land in fee for the consideration named therein of $6,000. He
then offered in evidence a deed from himself and wife to the
defendant. Foil, dated December 27, 1880, conveying to him
the said land in fee for the consideration named therein of
$5,000, "to have and to hold three-fifths of said land
to him, the said party of the second part, and his heirs, as
trustee for Nancy E. Melchor; and the other two-fifths to
him, the said Foil, and his heirs."
The
defendant then testified in his own behalf as follows
"The plaintiff came to me, and offered to sell his land.
Said that he wanted to leave the state. Something was said
about a gold mine. He charged five thousand dollars for the
land. I declined to take it, but offered four thousand
dollars,
and permit him to retain four acres and a right of way to the
mine. He finally agreed to rent the land for that year, and
pay me nine bales of cotton, rent, and I agreed to give five
thousand dollars for it. Mr. Puryear wrote the deed. I
employed him to write it. Michael wanted to insert a
reservation of one-half of the mineral interest. I declined
to permit it; but told him that he was to open the mine, and
have half of what he got from the sale of the mineral
interest. I did not agree with him to give him one-half of
the proceeds of the sale of the mineral interest. Orchard
never paid me anything for the mineral interest. He paid me
for the plantation. I made some improvements on the land,
amounting to about one hundred and seventy dollars. When I
sold, there was a crop on it--wheat, etc.--worth about seven
hundred dollars. My interest was about one-third."
Cross-examined, he said: "I have no recollection that
Mr. Puryear, at the time of writing the deed, suggested that
the reservation be put in the deed. I do not think...
