Vann v. Newsom

• Decision Date: 16 February 1892
• Citation: 14 S.E. 519,110 N.C. 122
• Parties: VANN et al. v. NEWSOM.
• Court: North Carolina Supreme Court

14 S.E. 519

110 N.C. 122

VANN et al. v. NEWSOM.

Supreme Court of North Carolina

February 16, 1892

Appeal from superior court, Hertford county; GEORGE H. BROWN, Judge.

Suit by one Vann and another, executors of the estate of Joseph Newsom, deceased, to recover a sum due the estate under the will. It appeared that in 1874 Joseph Newsom, father of defendant, made a parol gift to defendant of a small unimproved piece of land, worth from $200 to $300, and put defendant in possession, who commenced to work and improve the same. In 1878 and 1879 defendant, with knowledge approval, and at the solicitation of his father, erected on said land valuable and permanent improvements, costing several thousand dollars, and continued thereafter, with the knowledge and approval of his father, to improve the land the father frequently telling the son that the land was the latter's, and to build on and improve it. About 1884 the father and son became estranged in their feelings, and in 1886 the father died, leaving a will, in which he devised said piece of land to his son, with a charge thereon of $400 in favor of his residuary legatees. This suit is brought by the executors to have the land with the improvements sold to pay said charges of $400, with interest. The defendant answered, repudiating the devise, and asking judgment for his improvements. The jury found that defendant had increased the value of the land by his improvements $3,000, and that the actual value of the rents and profits, exclusive of improvements from the time of the probate of the will up to the trial, was $85. Thereupon the court adjudged that defendant is entitled to a lien on the land for $2,915, and that he is entitled to the possession of the land until said lien is paid; that plaintiffs are entitled to a second lien thereon for $400, with interest; and that the land be sold by commissioners; the sale to be reported to the next term of court. Plaintiffs appeal. Modified and affirmed.

Pruden & Vann, for appellants.

B. B Winborne, for appellee.

AVERY J.

"Where a plaintiff declares upon a verbal contract, void under the statute of frauds, and the defendant either denies that he made the contract, or sets up another and a different agreement, or admits the oral agreement, and pleads specially the statute, the plaintiff cannot recover." Browning v. Berry, 107 N.C. 231, 12 S.E. Rep. 195; Morrison v. Baker, 81 N.C. 76; Young v. Young, Id. 91; Gulley v. Macy, 84 N.C. 434; Bonham v. Craig, 80 N.C. 224; Holler v. Richards, 102 N.C. 545, 9 S.E. Rep. 460; Cox v. Ward, 107 N.C. 507, 12 S.E. Rep. 379; Dunn v. Moore, 3 Ired. 364. When equitable relief could not be granted in what was technically known as an action at law, though a vendee, who had taken possession of land under a parol contract for the purchase, and had enhanced its value by making permanent improvements, could not enforce the contract in a court of equity, he could, when the vendor brought ejectment to oust him, invoke the aid of a chancellor to restrain further proceedings at law until the vendor reimbursed the purchase money paid under the verbal agreement, and compensated the occupant holding the land under it for the additional value imparted to the property by the improvements. Baker v. Carson, 1 Dev. & B. Eq. 381; Albea v. Griffin, 2 Dev. & B. Eq. 9. In Baker v. Carson, Chief Justice RUFFIN called attention to the fact that the court of equity was not asked to enforce the agreement, but to prevent fraud by restraining the defendant "from the exercise of her legal power to turn him out of house and home, unless she will consent to do what conscience requires,--make him an equivalent for the worth of his labor, dishonestly taken to herself." That labor was expended in improving a tract of land in which the plaintiff Baker's wife was a tenant in common in the remainder, and which he was induced to improve under a promise from the life-tenant, who was his wife's mother, that she would convey to him her interest. In that case, therefore, a parent, by making a parolgift for the purpose of benefiting a child, had, as in our case, induced the expenditure of money which enhanced the value of the land donated. The same relief was granted and the same principle was recognized under the Code practice by allowing an equitable counter-claim for improvements to one holding under a verbal agreement for the purchase of land. Daniel v. Crumpler, 75 N.C. 184; Pope v. Whitehead, 68 N.C. 191; Wetherell v. Gorman, 74 N.C. 603; Pitt v. Moore, 99 N.C. 85, 5 S.E. Rep. 389; Hedgepeth v. Rose, 95 N.C. 41. In Daniel v. Crumpler, the court said: "It is settled law in this state that, although a parol agreement to convey land is void by our statute, yet, if the vendee, in reliance on it, pays the purchase money, and makes improvements, he cannot be evicted until the vendor repays the purchase money and makes compensation for the value of the improvements." A similar principle was announced by the present chief justice in Tucker v. Markland, 101 N.C. 422, 8 S.E. Rep. 169, where he said for the court: "It seems that, having paid the money, he took possession of the land in pursuance of his supposed right under the voidable contract of purchase, and with the sanction of the vendor. It would be inequitable and against conscience to allow the latter to turn him out of possession thereof without restoring his outlay in cash and for valuable improvements put on the land while so in possession." That such contracts are only voidable, and may be ratified in writing or repudiated at the option of the vendors, is recognized and established by numerous other authorities besides the case of Tucker v. Markland.

The question discussed in McCracken v. McCracken, 88 N.C. 283, is not, as was suggested in the brief of counsel raised in this case. If the defendant had brought the action to enforce the parol contract, the relative position of the parties would have been the same as in that case. But the defendant chose to hold the possession of the land, upon which he had entered in 1878, under the verbal agreement of his father to convey, from his father's death, in 1886, till October 4, 1889, when this action was brought by the executors of the father's will, who then for the first time acted upon the repudiation of the agreement by the father in the will. The agreement being not void, but merely voidable, the defendant was guilty of no laches in awaiting the action of the executors or the residuary legatees for three years after the father's will, in which he repudiated the agreement, was proved. The defendant was under no legal duty or obligation to become the actor and bring suit...