Taylor v. Hunt

• Decision Date: 31 March 1896
• Parties: TAYLOR v. HUNT et al.
• Court: North Carolina Supreme Court

24 S.E. 359

118 N.C. 168

TAYLOR v. HUNT et al.

Supreme Court of North Carolina

March 31, 1896

Appeal from superior court, Vance county; Coble, Judge.

Action by J. H. Taylor, trustee, against, J. M. B. Hunt and another to secure the application of the rents of certain land to the payment of debts secured by the lease. There was a judgment for defendants, and plaintiff appeals. Error.

Agency cannot be proved by mere declaration of alleged agent or one claiming to be agent.

T. T Hicks, W. B. Shaw, and R. O. Burton, for appellant.

MacRae & Day and Argo & Snow, for appellees.

CLARK J.

The principal point at issue in this case is discussed and settled in Moffitt v. Maness, 102 N.C. 457, 9 S.E 399. The defense set up is an attempt to contradict and vary the terms of a written contract of lease, by showing a contemporaneous parol agreement that a certain debt therein secured should be indulged, and that, if it was not, the lease was null and void. Such verbal agreement, if made might be a defense to an independent action to collect the debt, but would not nullify the lease. There is no allegation that such stipulation was left out of the lease by fraud, mutual mistake, or accident, and no prayer to reform the instrument on such ground. While it is true that where a contract is not required to be in writing, if the entire contract is not reduced to writing, the other part may be proven by parol (Nissen v. Mining Co., 104 N.C. 309, 10 S.E. 512); this has never been permitted to nullify the settled rule that such oral evidence must not contradict or vary the part that is in writing. If the defendants in the present case are merely seeking to show that it was agreed by parol that if a certain debt secured by the lease was to be indulged, and that it has not been, this does not, as they insist, nullify the lease, but was a defense to have been used against the action brought on the debt. If the defendants are seeking to show a verbal agreement that, if the debt was not indulged, the lease was to be void and ineffectual, this would be to contradict a written agreement by a parol defense. The first two issues, therefore, were improperly submitted. Parker v. Morrell, 98 N.C. 232, 3 S.E. 511, and cases cited; Martin v. McNeely, 101 N.C. 634, 8 S.E. 231; Bank v. McElwee, 104 N.C. 305, 10 S.E. 295.

The next two issues were immaterial, for, as those debts were secured by the lease, it could make no difference whether or not, at the date of the lease, the defendants might have successfully pleaded the statute of limitation if action had been brought. If they were then barred, that did not prevent an honest debtor from securing them, and, indeed, such security is a new promise (Code, § 172), at least to the extent of the property conveyed. Besides, the security, when not...