Thornburg v. Masten

• Decision Date: 28 February 1883
• Citation: 88 N.C. 293
• Court: North Carolina Supreme Court
• Parties: G. J. THORNBURG v. R. A. MASTEN.

88 N.C. 293

G. J. THORNBURG

v.R. A. MASTEN.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of WILKES Superior Court, before Gudger, J.

This action was instituted against the defendant, J. S. Call, and the heirs of William Masten, for a specific performance of a contract to convey land, entered into by the said Masten with the plaintiff, Thornburg.

The defendants, with the exception of Call and Brown, are the heirs-at-law of William Masten.

The facts are, that some time in the year 1863 said Masten contracted to sell to the plaintiff one undivided moiety of a tract of land lying on Fishing creek, in Wilkes county, adjoining the lands of N. Parker, J. W. Transean and A. Winkler, containing, in all, two hundred and twelve acres (the other moiety being owned by J. W. Transean), giving to the plaintiff the following paper writing: “Received, April 21st, 1863, of George Thornburg, five hundred dollars on account of the sale of my interest in the Lenoir lands, owned by myself and J. W. Transean.” (Signed by William Masten.)

By the agreement, Masten was to have the land surveyed, which he pretended to do, but afterwards refused to make the plaintiff a deed for the same, though often requested so to do.

Before his death in 1876, Masten went into bankruptcy and included the land in dispute in his schedule. It was allowed him as his homestead, and his reversionary interest was sold by his assignee and purchased by James Calloway and G. H. Brown, who soon afterwards sold the same to the defendant, Call, who had full knowledge of the fact that Masten had contracted to sell his interest to plaintiff and that the latter had paid five hundred dollars towards the purchase.

The defendant, Brown, answered that he had no interest in the land.

The defendant, Call, among other defences set up in his answer, insisted that the description contained in the receipt set out in the complaint was so indefinite that the court could not know with any degree of certainty the land of which it is asked to decree conveyance.

The case was submitted to the jury upon the issues raised by pleadings, and upon an intimation of His Honor that said receipt was too vague in its description, and was not a sufficient memorandum in writing to entitle the plaintiff to recover, he suffered a nonsuit and appealed.

No counsel for plaintiff.

Mr. L. L. Witherspoon, for defendants .

ASHE, J.

The question is, whether there was error in the ruling of His Honor that the receipt for the five hundred dollars was too vague and uncertain to take the contract out of the operation of the statute of 29 CHARLES II.

We are at a loss to know upon what ground His Honor intimated the opinion that the writing recited in the complaint was insufficient to maintain the action upon it: whether it was upon the ground that the full consideration, agreed to be paid by the plaintiff, was not mentioned in the writing, or because the description of the land was too uncertain. But in either view there was error in the opinion expressed by him.

Although in England it is held that in any contract for the conveyance of land the consideration must be set forth in the agreement, it has been decided otherwise in this state. In Miller v. Irvine, 1 Dev. & Bat., 103, in which Chief-Justice RUFFIN gave an elaborate opinion reviewing the English and American decisions on...