Foust v. . Shoffner

62 N.C. 242

• Court: Supreme Court of North Carolina
• Decided: June 5, 1867
• Status: Published

Opinion

Pearson, C. J.

There can be no doubt when one gives his note as the price of a tract of land, and takes no bond for title, but relies upon the verbal promise of the vendor to make a deed, that if the vendor collects the note by judgment, and then refuses to make title, and takes advantage of the Statute of Frauds, a Court of Equity will not allow him to keep the money, but will compel him to refund, on the ground that the note was obtained by a fraudulent mis representation, and a false promise; and in sucb case, the purchaser may maintain a bill, and require the vendor either to comph' with the confidence reposed in him and make title, or else refund the money. Albea v. Griffin, 2 Dev. & Bat. Eq. 9.

The plaintiff in this case however, seeks to avoid the contract for the defendants, instead of waiting to see whether they will take advantage of the Statute of Frauds; and the defendants, by their answers, aver a willingness to execute title, and comply with their verbal undertaking in respect to the land. This fully meets any equity on the part of the plaintiff.

Per Curiam.

Bill dismissed.