Coxe v. . Dillard

148 S.E. 545, 197 N.C. 344, 1929 N.C. LEXIS 232

• Court: Supreme Court of North Carolina
• Decided: June 12, 1929
• Status: Published

Opinion

Brogden, J.

The plaintiff alleged that the land was sold .to the defendants,- but that the deed was made to L. E. Sorrell for their convenience and at their request. The demurrer admits this allegation. Hence Sorrell was merely holding the-title to the land for the use and benefit of the defendants.

-Plaintiff further alleged that Sorrell conveyed the property to the defendants by a deed containing a covenant according-, to• the .terms of which the defendants agreed to pay the indebtedness described, in the complaint. The demurrer admits this allegation.

Upon this state of the record the trial judge was fully justified in overruling the demurrer. ... 7. -..

Defendants, however, insist that the notes in controversy were signed not by them, but by Sorrell and plaintiff, Coxe, and that therefore they cannot be held upon an oral promise to answer for the.- debt or default of another under the provisions of C. S., 987. : :

This position cannot be maintained for two reasons:

First, it appears from the complaint that the land was purchased by Sorrell for the use and benefit of defendants. Hence the defendants .-had a personal and pecuniary interest in the transaction, and the statute-of fraud would not apply. Dale v. Lumber Co., 152 N. C., 651, 68 S. E., 134; Peele v. Powell, 156 N. C., 554; 73 S. E., 234; Powell v. Lumber Co., 168 N. C., 632, 84 S. E., 1032; Springs v. Cole, 171 N. C., 418, 88 S. E., 721; Kelly Handle Co. v. Crawford Plumbing Co., 171 N. C., 495, 88 S. E., 514. See, also, Keller v. Parrish, 196 N. C. 733; and Justice v. Sherard, ante, 237.

Second, it further appears that the defendants received. a deed for their proportional interests in the land in which said-deed-it was agreed that they would assume and pay off the indebtedness described in the complaint. The grantee in a deed containing covenants and stipulations purporting to bind him becomes bound for their performance even though he does not execute the deed. Peel v. Peel, 196 N. C., 782.

'Affirmed.