Searcy v. . Logan

39 S.E.2d 593, 226 N.C. 562, 1946 N.C. LEXIS 271

• Court: Supreme Court of North Carolina
• Decided: October 9, 1946
• Status: Published

Opinion

Winborne, J.

This is the paramount question on this appeal: Is the wording of the receipt, Exhibit 2, identified by plaintiff and offered in evidence by defendant, a sufficient memorandum of contract to sell and convey land to admit of parol evidence for purpose of identifying' the land ? The court below was of opinion that it is sufficient, and admitted parol evidence for that purpose. The ruling is in harmony with principle of law enunciated in long line of pertinent decisions of this Court.

This Court has uniformly recognized the principle that a deed conveying land, or a contract to sell or convey land, or a memorandum thereof, within the meaning of the statute of frauds, G. S., 22-2, must contain a description of the land, the subject matter thereof, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed, contract or memorandum refers. The principle has been the subject of these recent decisions in which earlier decisions are cited and assembled: Self Help Corp. v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889; Hodges v. Stewart, 218 N. C., 290, 10 S. E. (2d), 723; Comrs. of Beaufort v. Rowland, 220 N. C., 24, 16 S. E. (2d), 401; and Stewart v. Cary, 220 N. C., 214, 17 S. E. (2d), 29. (Compare Johnston County v. Stewart, 217 N. C., 334, 7 S. E. (2d), 708.) Hence further exposition on the subject would be unnecessarily repetitious.

Tested by this principle, the description contained in Exhibit 2 is sufficiently definite to admit of parol evidence for the purpose of identification. Hence the exception may not be sustained.

Objection to Exhibit No. 1 is likewise untenable. While it does not purport to identify land, it is competent as receipt for money — and oral testimony was competent to show it to be a part of the consideration for tbe land contracted to be conveyed. See Bateman v. Hopkins, 157 N. C., 470, 73 S. E., 133.

Appellant also assigns as error tbe ruling-of tbe court in sustaining defendant’s objection to plat of land wbicb plaintiff proffered as evidence. Tbis assignment is not tenable. A map or plat of a survey not made in pursuance of an order of tbe court is inadmissible as evidence per se. While it may be used by a witness under examination to explain or elucidate bis testimony, it may not be exhibited as substantive evidence. See Dobson v. Whisenhant, 101 N. C., 645, 8 S. E., 126; Burwell v. Sneed, 104 N. C., 118, 10 S. E., 152; Tankard v. R. R., 117 N. C., 558, 23 S. E., 46.

Next, regarding tbe assignment that tbe court erred in failing to charge tbe jury in respect to tbe statute of frauds. It is noted (1) that in tbe case on appeal as served by appellant tbe charge of tbe court was not incorporated, nor was any exception taken to tbe charge or to any failure of tbe court to charge; (2) that defendant included tbe charge in full in bis countercase; and (3) that thereupon appellant excepted to tbe charge on tbe ground that it fails to charge properly tbe law with reference to the statute of frauds.

Upon tbis factual situation appellant insists that tbe exception is timely. Appellee takes contrary view. And tbe applicable statute, Gf. S., 1-282, provides that tbe appellant shall cause to be prepared a concise statement.of tbe case, embodying tbe instructions of tbe judge, if there be exception thereto — “stating separately in articles numbered, tbe errors alleged.” Thus it would seem that an exception not contained in tbe statement of ease on appeal as prepared by appellant is not timely entered. Compare Sloan v. Assurance Society, 169 N. C., 257, 85 S. E., 216; Layton v. Godwin, 186 N. C., 312, 119 S. E., 495; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602; Chozen Confections v. Johnson, 220 N. C., 432, 17 S. E. (2d), 505. But if tbe exception were timely, we are of opinion that it is not well founded. A reading of tbe charge reveals that tbe case was fully and fairly presented to tbe jury.

All other exceptions have been given due consideration, and are found to be without merit.

In the judgment below, we find

No error.