Severe v. Penny

Court of Appeals of North Carolina

Severe v. Penny

269 S.E.2d 760, 48 N.C. App. 730, 1980 N.C. App. LEXIS 3297

CourtCourt of Appeals of North Carolina

DecidedSeptember 16, 1980

DocketNo. 8010SC204

StatusPublished

Cited by1 cases

This text of 269 S.E.2d 760 (Severe v. Penny) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Severe v. Penny, 269 S.E.2d 760, 48 N.C. App. 730, 1980 N.C. App. LEXIS 3297 (N.C. Ct. App. 1980).

Pincite

Opinion

MARTIN (Robert M.), Judge.

N.C. Gen. Stat. § 22-2 states that “[a]ll contracts to sell or convey any lands ... 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 ... .” 22-2 has been interpreted to prohibit parol evidence to establish such a contract. “A contract which the law requires to be in writing can be proved only by the writing itself, not as the best but as the only admissible evidence of its existence.” (Emphasis in original.) Morrison v. Baker, 81 N.C. 76, 80-81 (1879).

It is settled by numerous decisions that if the contract be denied . . . parol evidence is inadmissible to show the existence or terms of the agreement. (Citations omitted.) “Where the plaintiff sues upon a contract, the performance of which he seeks to enforce specifically in equity, ... he must establish the contract by legal evidence, and if it is required by the statute to be in writing, then by the writing itself, for that is the only admissible proof.” (Citations omitted.) Jamerson v. Logan, 228 N.C. 540, 543, 46 S.E. 2d 561, 563 (1948).

The court in Kluttz v. Allison, 214 N.C. 379, 199 S.E. 395 (1938) held that parol evidence is incompetent to establish an essential element of an otherwise written contract to convey land. Certainly it follows that parol evidence is incompetent to establish the entire contract to convey land. Plaintiffs admit that they are unable to produce a written contract or any written memorandum of a contract to convey the property in question signed by the parties to be charged. To permit a party to establish a contract to convey land solely by parol evidence would defeat the purpose of 22-2 by opening the door to “all the mischiefs which the statute was intended to prevent.” Hall v. Misenheimer, 137 N.C. 183, 188, 49 S.E. 104, 106 (1904). Therefore the judgment of the court below must be upheld.

[733]*733Affirmed.

Judges Vaughn and Webb concur.

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MARTIN (Robert M.), Judge.

N.C. Gen. Stat. § 22-2 states that “[a]ll contracts to sell or convey any lands ... 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 ... .” 22-2 has been interpreted to prohibit parol evidence to establish such a contract. “A contract which the law requires to be in writing can be proved only by the writing itself, not as the best but as the only admissible evidence of its existence.” (Emphasis in original.) Morrison v. Baker, 81 N.C. 76, 80-81 (1879).

It is settled by numerous decisions that if the contract be denied . . . parol evidence is inadmissible to show the existence or terms of the agreement. (Citations omitted.) “Where the plaintiff sues upon a contract, the performance of which he seeks to enforce specifically in equity, ... he must establish the contract by legal evidence, and if it is required by the statute to be in writing, then by the writing itself, for that is the only admissible proof.” (Citations omitted.) Jamerson v. Logan, 228 N.C. 540, 543, 46 S.E. 2d 561, 563 (1948).

The court in Kluttz v. Allison, 214 N.C. 379, 199 S.E. 395 (1938) held that parol evidence is incompetent to establish an essential element of an otherwise written contract to convey land. Certainly it follows that parol evidence is incompetent to establish the entire contract to convey land. Plaintiffs admit that they are unable to produce a written contract or any written memorandum of a contract to convey the property in question signed by the parties to be charged. To permit a party to establish a contract to convey land solely by parol evidence would defeat the purpose of 22-2 by opening the door to “all the mischiefs which the statute was intended to prevent.” Hall v. Misenheimer, 137 N.C. 183, 188, 49 S.E. 104, 106 (1904). Therefore the judgment of the court below must be upheld.

[733]*733Affirmed.

Judges Vaughn and Webb concur.

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269 S.E.2d 760, 48 N.C. App. 730, 1980 N.C. App. LEXIS 3297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/severe-v-penny-ncctapp-1980.

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