Searcy v. Logan

• Decision Date: 09 October 1946
• Docket Number: 163
• Parties: SEARCY v. LOGAN.
• Court: North Carolina Supreme Court

39 S.E.2d 593

226 N.C. 562

SEARCY v. LOGAN.

No. 163

Supreme Court of North Carolina

October 9, 1946

Civil action for recovery of possession of land rents, etc.

Plaintiff alleges in his complaint, briefly stated: That he is the owner of a certain tract of land in Chimney Rock Township Rutherford County, North Carolina, which is specifically described in a deed from O. C. Erwin, trustee, to him, dated March 6, 1937, and duly registered; that defendant went into possession of said land as tenant of plaintiff for standing rent of $40 cash a year, and paid same for the years 1940 and 1941; that defendant is indebted to plaintiff for rents for years 1942, 1943 and 1944, and, though demand therefor was made by plaintiff in spring of 1944, defendant refused to pay same; and that thereupon plaintiff notified defendant to vacate the land and not to cultivate same, but defendant refused to comply with the notice and wrongfully withholds the land.

Defendant answering the complaint, admits that he went into possession of the land described in the complaint under a contract with plaintiff for a rental of $40 a year for the year 1940, but denies all other material allegations thereof; and for a further answer and defense, upon which he asks affirmative relief, defendant avers that in the year 1940, after he had entered upon said lands, he and plaintiff entered into an agreement by which plaintiff was to convey the land to him for the sum of $300; that he paid $80 to plaintiff and has receipts therefor, and now stands ready to pay to plaintiff the balance of $220, if and when plaintiff will execute and deliver to him a deed for said land that plaintiff has refused to execute deed to him in accordance with the agreement; and that he now tenders to plaintiff the $220, balance of purchase price, and will pay same to him upon execution of deed for the property. Thereupon defendant prays specific performance of contract.

Plaintiff in reply denies the averments of defendant's further answer and defense.

Upon the trial below plaintiff offered in evidence: (1) The admission of defendant that he went into possession of land described in complaint as tenant of plaintiff; (2) testimony of himself in respect to failure of defendant to pay rents; and (3) the deed from O. C. Erwin, trustee, to plaintiff bearing date March 6, 1937, and purporting (a) to have been executed pursuant to foreclosure sale held February 20, 1937, under a deed of trust dated May 26, 1927, and executed by L. F. Logan and wife Eva J. Logan, at which sale plaintiff became the purchaser of the tract of land, as described in the complaint, at the price of $340 plus taxes due,--and (b) to have conveyed said land. And, on cross-examination, plaintiff identified two papers marked Nos. 1 and 2 as having been signed by his wife in his name at his direction.

Defendant then, over objection by plaintiff, offered in evidence the two papers so identified by plaintiff as follows:

Exhibit No. 1. 'Received of Charley Logan $30.00 on trade. (Signed) William Searcey September 21, 1940.'

Exhibit No. 2. '$50.00. Received of Charley Logan $50.00 for homeplace where he now lives which he has no deed for. (Signed) William Searcy September 26, 1941.'

Exception by plaintiff.

Defendant then offered oral testimony, tending (1) to show the facts to be as averred in his further answer and defense, and (2) to identify the 'homeplace where he now lives for which he has no deed', set forth in Exhibit No. 2, as the land described in the complaint, and in the deed from O. C. Erwin, trustee, to plaintiff.

Plaintiff excepted and assigns as error the admission of certain portions of the testimony offered by defendant,--the more important ones being adverted to in the opinion as hereinafter set forth.

On the other hand, plaintiff offered testimony tending (1) to controvert the evidence offered by defendant, and (2) to show that the land to which the agreement to purchase referred was not that described in the complaint, but another small tract.

Plaintiff excepted and assigns as error the refusal of the court to admit, upon objection by defendant, certain proffered evidence,--the more important instances being referred to in the opinion as hereinafter set forth.

These issues, in respect to controverted matters, were submitted and were answered by the jury as shown:

'2. Did the plaintiff thereafter contract in writing to sell and convey to the defendant the lands described in the complaint, as alleged in the answer? Answer: Yes.

'3. Has the defendant at all times been ready, able and willing to comply with the said contract of purchase and sale, as alleged in the answer? Answer: Yes.'

In accordance with the verdict the court entered judgment for specific performance as prayed by defendant.

Plaintiff appeals therefrom to Supreme Court, and assigns error.

Stover P. Dunagan, of Rutherfordton, for plaintiff-appellant.

Hamrick & Hamrick, of Rutherfordton, for defendant-appellee.

WINBORNE Justice.

This is the paramount question on this appeal: Is the wording of the receipt, Exhibit 2, identified by plaintiff and offered in evidence by defendant, a sufficient memorandum of contract to sell and convey land to admit of parol evidence for purpose of identifying the land? The court below was of opinion that it is sufficient, and admitted parol evidence for that purpose. The ruling is in harmony with principle of law enunciated in long line of pertinent decisions of this Court.

This Court has...