Brown v. Hobbs

154 N.C. 544

Opinions

Allen, J.

Tbis seems to be an ingenious effort upon tbe part of counsel for defendant to enforce a parol contract in regard to land. Tbe section of tbe Eevisal (579) under -which tbe motion is made was intended to give tbe judgment debtor a speedy and inexpensive remedy when be bad made payments which tbe creditor refused to enter on tbe judgment. Tbe procedure under tbe motion is clearly stated in tbe statute.

We do not think it was -intended to embrace a controversy like tbis, growing out of an independent contract, which may be tbe subject of another action. Tbe statute says tbe remedy by motion may be-bad “when any payment has been made on any judgment.”

Tbe defendant has paid nothing. On his own showing, he has entered into an entire contract, void under the statute of frauds, and the plaintiff claims that he is not willing to perform this.

We agree with his Honor that these controversies cannot be settled in this motion.

Affirmed.