Smith v. . Arthur

Supreme Court of North Carolina

Smith v. . Arthur

15 S.E. 197, 110 N.C. 400

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1892

StatusPublished

Cited by7 cases

This text of 15 S.E. 197 (Smith v. . Arthur) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. . Arthur, 15 S.E. 197, 110 N.C. 400 (N.C. 1892).

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Opinion

Shepherd, J.:

The motion for judgment .upon the pleadings was properly overruled. This is not an action for the specific performance of a contract for the sale of land, but for the recovery of an alleged balance of purchase-money for land which has been sold and conveyed to, the defendants by the plaintiff It is true that the plaintiff alleges that the deed was only signed by him, and that its possession by the defendants was procured by fraudulent means; but as the defendants admit its execution, and claim under it, and the plaintiff affirms it by suing for the purchase-money, it must be treated for the purposes of this action as having been duly executed. This being so, it was unnecessary 'for the plaintiff to have shown a written contract of sale, and he was entitled to recover any balance due him as *402 purchase-money for the said land. Executed contracts of this character are not within the statute of frauds. Choat v. Wright, 2 Dev., 289; Rice v. Carter, 11 Ired., 298. The terms however of the contract seem to have been stated in a lost letter, and secondary evidence of its contents was admitted by the Court. This testimony was consistent with the recital in the deed as to the amount of the consideration, and it, as well as the deed, was admissible for the purpose of showing the said consideration. The objection that the recital of the receipt of the consideration money is conclusive, and that the plaintiff is estopped to show that any balance is due, is met by the case of Barbee v. Barbee, 108 N. C., 582. In that case, the effect of such a recital is fully discussed, and' it was held that it “ is not contractual in its character, and is only prima facie evidence of the payment of the purchase'-money, which may be rebutted by parol testimony.” As to the refusal of the Court to submit an issue upon the counter-claim, we will remark that such a practice is not to be commended. Under the circumstances of this case however, we do not see how the defendants were prejudiced, as his ITonor afterwards gave them a judgment as upon default and inquiry, and stayed execution until the inquiry could be instituted.

Affirmed.

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Shepherd, J.:

The motion for judgment .upon the pleadings was properly overruled. This is not an action for the specific performance of a contract for the sale of land, but for the recovery of an alleged balance of purchase-money for land which has been sold and conveyed to, the defendants by the plaintiff It is true that the plaintiff alleges that the deed was only signed by him, and that its possession by the defendants was procured by fraudulent means; but as the defendants admit its execution, and claim under it, and the plaintiff affirms it by suing for the purchase-money, it must be treated for the purposes of this action as having been duly executed. This being so, it was unnecessary 'for the plaintiff to have shown a written contract of sale, and he was entitled to recover any balance due him as *402 purchase-money for the said land. Executed contracts of this character are not within the statute of frauds. Choat v. Wright, 2 Dev., 289; Rice v. Carter, 11 Ired., 298. The terms however of the contract seem to have been stated in a lost letter, and secondary evidence of its contents was admitted by the Court. This testimony was consistent with the recital in the deed as to the amount of the consideration, and it, as well as the deed, was admissible for the purpose of showing the said consideration. The objection that the recital of the receipt of the consideration money is conclusive, and that the plaintiff is estopped to show that any balance is due, is met by the case of Barbee v. Barbee, 108 N. C., 582. In that case, the effect of such a recital is fully discussed, and' it was held that it “ is not contractual in its character, and is only prima facie evidence of the payment of the purchase'-money, which may be rebutted by parol testimony.” As to the refusal of the Court to submit an issue upon the counter-claim, we will remark that such a practice is not to be commended. Under the circumstances of this case however, we do not see how the defendants were prejudiced, as his ITonor afterwards gave them a judgment as upon default and inquiry, and stayed execution until the inquiry could be instituted.

Affirmed.

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Bluebook (online)

15 S.E. 197, 110 N.C. 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-arthur-nc-1892.

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