Stephens v. . Midyette

77 S.E. 243, 161 N.C. 323, 1913 N.C. LEXIS 229

• Court: Supreme Court of North Carolina
• Decided: February 26, 1913
• Status: Published

Opinion

Clare:, C. J.

Tbe defendants leased to W. J. Moore tbe land in question for tbe five years, 1909-1913, inclusive. Said Moore cultivated tbe land for two years. On 12 November, 1910, Moore assigned tbe lease to tbe plaintiff in writing as follows: “I herewith transfer to A. H. Step'bens my lease on tbe Mid-yette farm for tbe remaining term of three years. Said lease to be delivered upon demand.”

Objection was made that the assignment was not under seal. The plaintiff Stephens was also allowed to testify over objection that it was agreed at the time that the transfer should take effect on 1 January, 1911. This did not contradict the writing, because it was specified therein that the assignment was for the “remaining three years.” It was in evidence also that the demand was made, in pursuance of the written assignment, on 1 January, 1911. Besides, if the assignment had taken place 12 November, it specified that it was for “the remaining three years.” The evidence was not contradictory of the written agreement, but was explanatory and indeed in pursuance of its evident meaning.

Revisal, 976, requiring leases for more than three years to be put in writing, does not require the use of a seal on an assignment. Moreover, the statute of frauds -was not pleaded nor contract denied, and an objection on that ground can only be taken by answer, and not by a demurrer or objection to evidence. Williams v. Lumber Co., 118 N. C., 928; Hemmings v. Doss, 125 N. C., 402.

The assignment, even of a mortgage, is not required to be registered. Williams v. Brown, 127 N. C., 51.

No error.