Keith Bros. v. Kennedy

140 S.E. 721, 194 N.C. 784, 1927 N.C. LEXIS 215

• Court: Supreme Court of North Carolina
• Decided: December 21, 1927
• Status: Published

Opinion

ClaeksoN, J.

The principles of law involved in the controversy are simple. The plaintiffs denied the contract as alleged by defendant and contended that the delivery of the deed was conditional and the condition was not fulfilled — the contract was executory and the statute of frauds was applicable. On the other hand the defendant, Kennedy, contended that the contract was executed, the deed delivered in compliance with the contract on his and the other defendant, Peterson’s, part, interested in the trade, and they owning the land delivered the deed as agreed upon; that the title was good;-that as for any taxes due, it was to be deducted from the $250; that the taxes have been paid, and they are now and" at all times were able, ready and willing to carry out their part of the contract. The plaintiffs’ witnesses testified to the facts as contended for by plaintiffs, and defendants to the contrary. The jury decided the facts in accordance with defendant’s contentions.

The statute of frauds, C. S., 988, is as follows: “All contracts to sell of convey any lands, tenements or hereditaments, or ■ any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals; or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” The statute of frauds, supra, says all contracts to sell or convey any lands, etc., shall be put in writing. In the present case the jury found the trade was consummated and the deed delivered and accepted — the contract executed.

It was said in Choat v. Wright, 13 N. C., at p. 290: “In relation therefore to realty, not only the words of the act, ‘a. contract to sell/ but the state of the law before, restrains the statute to executory contracts.” This is now and has always been the law of this jurisdiction. Hall v. Fisher, 126 N. C., p. 205; McManus v. Tarleton, 126 N. C., p. 790; Brinkley v. Brinkley, 128 N. C., p. 503; Rogers v. Lumber Co., 154 N. C., p. 108; Davis v. Harris, 178 N. C., p. 24.

The exceptions and assignments of error as to the exclusion of evidence cannot be sustained. We think, from examination of the entire record, that the evidence excluded, if error, was cured by the same kind of evidence being permitted to be introduced without objection later in the trial. Trust Co. v. Store Co., 193 N. C., p. 122.

The court below charged correctly as to the burden of proof and the other aspects of the law arising on the evidence. If plaintiffs desired more specific instructions they should have requested them by proper prayers. Davis v. Long, 189 N. C., at p. 137.

The charge must be taken as a whole and not disconnectedly, and so taken we find no reversible or prejudicial error. It was mainly a question of fact for the jury, and they decided for defendant, and we can find in'law

No error.