Scott v. Jordan

• Decision Date: 19 March 1952
• Docket Number: No. 94,94
• Citation: 235 N.C. 244,69 S.E.2d 557
• Court: North Carolina Supreme Court
• Parties: SCOTT, v. JORDAN.

Page 557

69 S.E.2d 557

235 N.C. 244

SCOTT, v. JORDAN.

No. 94

Supreme Court of North Carolina.

March 19, 1952

J. W. Haynes and George A. Shuford, Asheville, for defendant-appellant.

Williams & Williams, Asheville, for plaintiff-appellee.

ERVIN, Justice.

The code of civil procedure prescribes that where the answer contains new matter constituting a counterclaim, the plaintiff may plead in his reply 'any new matter not inconsistent with the complaint, constituting a defense to the new matter in the answer.' G.S. § 1-141.

The defendant contends on her first appeal that Judge Nettles ought to have stricken the reply for want of conformity to this provision of the code. She asserts initially that the reply departs from the plaintiff's case as made in his complaint and introduces new matter inconsistent with it; and she insists secondarily that the new matter set up in the reply does not constitute a defense to the counterclaim stated in the answer.

It thus appears that the first appeal necessitates an examination of the pleadings.

The complaint states a good cause of action for the recovery of the parcel of realty known as No. 6 Buckingham Court. It alleges, in substance, that the plaintiff has title in fee to this land with the present right to its possession; that the plaintiff acquired his title by inheritance from the former owner, W. L. Scott; and that the defendant wrongfully withholds the possession of the land from the plaintiff.

The answer denies the material averments of the complaint, and avers as new matter and counterclaim that the defendant has equitable title to the land in question with a present right to its possession as the vendee in an executory contract in writing duly executed by the former owner, W. L. Scott, during his lifetime, to wit, on June 11, 1949.

The reply pleads that subsequent to the death of W. L. Scott the alleged executory contract of June 11, 1949, was abandoned and cancelled by an oral agreement made by plaintiff and defendant acting through Edward E. Dunn as mediator.

A complaint and a reply are inconsistent within the meaning of the code when they are contrary the one to the other, so that the one is necessarily false if the other is true. Colahan v. Herl, 168 Kan. 130, 210 P.2d 1003; O'Malley v. Luzerne County, 3 Kulp, Pa., 41. When the complaint and the reply under scrutiny are laid alongside this test, they are seen to be free of the vice of inconsistency. The reply in which the plaintiff alleges that the executory contract supporting the defendant's claim to No. 6 Buckingham Court has been abrogated by the mutual agreement of the parties is in complete harmony with the complaint in which the plaintiff asserts that he is the absolute owner of that property. Indeed, the plaintiff's pleadings conform to the general procedural principle that a plaintiff's initial pleading need not, and should not, by its averments, anticipate a counterclaim or a defense, and undertake to negative or avoid it. 71 C.J.S., Pleading, § 84.

This brings us to the inquiry whether the new matter set up in the reply constitutes a defense to the new matter stated in the answer.

The new matter in the answer bases the defendant's claim to the realty in controversy upon the executory contract allegedly made by the plaintiff's ancestor and the defendant. Manifestly the reply states a defense to this claim if it alleges that this executory contract has been abandoned and cancelled in a lawful mode by parties having legal power to take such action. May v. Getty, 140 N.C. 310, 53 S.E. 75; 58 C.J., Specific Performance, section 14. See, also, in this connection: 66 C.J., Vendor and Purchaser, section 1561.

According to the answer, the executory contract was executed by W. L. Scott, acting through his agent, Edward E. Dunn, in strict conformity with the provision of the statute of frauds that a contract 'to sell or convey any lands * * * 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.' G.S. § 22-2.

The statute of frauds applies to the making of enforceable contracts to sell or convey land, not to their abrogation. As a consequence, an executory written contract to sell or convey real property may be abandoned or cancelled by mutual agreement orally expressed. Bell v. Brown, 227 N.C. 319, 42 S.E.2d 92; May v. Getty, supra; Holden v. Purefoy, 108 N.C. 163, 12 S.E. 848; Houston v. Sledge, 101 N.C. 640, 8 S.E. 145, 2 L.R.A. 487.

It necessarily follows that the reply states a defense to the new matter in the answer if the plaintiff and the defendant had legal power to do what they are alleged to have done.

When an owner of land contracts to sell and convey it and dies intestate without doing so, his heirs take the property subject to (1) the equities of the purchaser under the contract, and (2) the rights of the administrator and the distributees of the owner under the doctrine of equitable conversion. Mizell v. Dennis Simmons Lumber Co., 174 N.C. 68, 93 S.E. 436; Mills v. Harris, 104 N.C. 626, 10 S.E. 704; Grubb v. Lookabill, 100 N.C. 267, 271, 6 S.E. 390; Osborne v. McMillan, 50 N.C. 109; Hodges v. Hodges, 22 N.C. 72; Earle v. McDowell, 12 N.C. 16; 18 C.J.S., Conversion, § 40; 26 C.J.S., Descent and Distribution, § 125; 33 C.J.S., Executors and Administrators, § 104; 58 C.J., Specific Performance, section 452.

For this reason, we digress here to observe that the plaintiff ought to have been made a party to the action based on the Act of 1797, now G.S. § 28-98, in which the defendant sues the administrator of the plaintiff's ancestor for specific performance of the executory contract of June 11, 1949. The basic issues in the two suits are identical. Manifestly the defendant cannot prevail in either case if the executory contract has been abandoned or cancelled by parties having legal power to take such action. 58 C.J., Specific Performance, section 165; 66 C.J., Vendor and Purchaser, section 1561. As the result of the order of some judge not identified by the present record denying the motion of the plaintiff for leave to intervene in the defendant's action against the administrator, we now have two law-suits where one would suffice. Moreover, each of the two suits bears a remarkable resemblance to 'the play-bill which is said to have announced the tragedy of Hamlet, the character of the Prince of Denmark being left out.'

When all is said, the order barring the plaintiff from intervention in the defendant's action against the administrator merely doubles litigation for litigation's sake. Under Article I, Section 17, of the North Carolina Constitution, a judgment cannot bind a person unless he comes or is brought before the court in some way sanctioned by law and afforded an opportunity to be heard in defense of his rights. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717; Thomas v. Reavis, 196 N.C. 254, 145 S.E. 226. As an inexorable consequence of this constitutional provision, any judgment which may be rendered in the defendant's action against the administrator will be wholly ineffectual as against the plaintiff who is not a party to such action, even though such action is predicated upon the Act of 1797, now G.S. § 28-98. This basic principle of the organic law was impliedly recognized and applied in McCraw v. Gwin, 42 N.C. 55, where the heirs were permitted to assail a deed made by the administrator of their ancestor under the power vested in him by the statute. As that great jurist Chief Justice Ruffin said more than a century ago: 'It is not the meaning of the statute that the executor should be obliged, or have power, to convey, where the deceased or his heir or devisee would not be bound to do so.' Hodges v. Hodges, supra.

If the court should deny the plaintiff the right to plead the abandonment or cancellation of the executory contract in the instant action after having barred him from participation in the defendant's suit...