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Pierce v. Gaddy

Filed: August 21, 1979.

LOIS B. PIERCE, INDIVIDUALLY, AND ADDICE PIERCE MILLER AND STEVE PIERCE, INDIVIDUALLY AND AS ADMINISTRATORS OF JOHN Q. PIERCE, DECEASED
v.
PHIL GADDY AND WIFE, JOHNNIE GADDY



Appeal by plaintiffs from Smith (Donald L.), Judge. Judgment entered 12 October 1977 in the Superior Court, Union County. Heard in the Court of Appeals 27 September 1978.

Parker, Judge. Judges Hedrick and Martin (Robert M.) concur.

Parker

In their complaint as originally filed, plaintiffs alleged that the 12 August 1954 deed "was intended to be a security interest" in the land conveyed, and they prayed the court to reform the deed by declaring it to be a security interest only. In their amended complaint they alleged an agreement by defendant, Phil Gaddy, to reconvey the property if plaintiffs' intestate repaid the loan he had obtained from Gaddy plus interest within one year from the date of the warranty deed. From the stipulations presented to the trial court at the hearing on defendants' motion for summary judgment, it is apparent that plaintiffs have now come to consider their action solely as one to enforce that agreement. That this is so is confirmed by the following statement in plaintiffs' brief on this appeal:

Now, it should be obvious that plaintiffs wish to proceed solely upon the theory that there was an agreement to reconvey the land in dispute to John Q. Pierce, evidenced by a memorandum sufficient under the statute of frauds, and that they, as his representatives and heirs, are entitled to the specific performance of this agreement.

We accept plaintiffs' theory of their action and treat this case as one to enforce a contract to convey real property. So treated, the only question presented by this appeal is whether plaintiffs have presented any written memorandum sufficient to make the contract enforceable under the statute of frauds, G.S. 22-2. We agree with the trial court that they have not, and accordingly we affirm the summary judgment for the defendants.

Our statute of frauds, G.S. 22-2, provides, in pertinent part, 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, or by some other person by him thereto lawfully authorized." "A valid contract to convey land, therefore, must contain expressly or by necessary implication, all the essential features of an agreement to sell, one of which is a description of the land, certain in

itself or capable of being rendered certain by reference to an extrinsic source designated therein." Kidd v. Early, 289 N.C. 343, 353, 222 S.E.2d 392, 400 (1976); accord, Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977).

To show compliance with the statute of frauds, plaintiffs in the present case rely principally upon a written receipt dated 3 September 1958 signed by the defendant, Phil Gaddy, by which Gaddy acknowledged receipt from J. Q. Pierce of one thousand dollars. The receipt bears the single notation, "For farm."

The receipt dated 3 September 1958 does not, either expressly or by necessary implication, contain the essential features of an agreement to sell land. No reference is made therein to any agreement on the part of defendant Gaddy to sell, nor may any such agreement be necessarily implied from anything appearing on the receipt. For that reason alone the receipt is insufficient to meet the requirements of the statute of frauds. See, Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652 (1945). For all that appears on the receipt or from anything referred to therein, it may have been given, as defendant Gaddy contends it was, to acknowledge receipt of rent rather than of purchase price.

In addition to the lack of any mention of any agreement to sell, the "farm" referred to in the receipt is not further identified therein, nor is reference made in the receipt to any extrinsic source by which the particular "farm" referred to can be made certain. The stipulation of the parties, which was presented to the trial court at the hearing on defendants' motion for summary judgment, that on the date the receipt was given, 3 September 1958, "Phil Gaddy owned a home and approximately 2.6 acres of land which was not a farm and that the said Phil Gaddy did not own any other real estate as of that date, save and except for, the 106.45 acres of land which is the subject of this lawsuit," cannot serve to make the receipt sufficient to comply with the statute of frauds. The stipulation was not in existence at the time the receipt was given and, of course, was in no way referred to therein. Moreover, even granting that at the time the receipt was given the only "farm" owned by Gaddy was the 106.45 acre tract involved in this case, it is not a necessary implication from this fact that the "farm" referred to in the receipt is the 106.45 acre

tract. There are thousands of tracts of land in this State to which the single word "farm" could apply, and one may make a valid contract, enforceable at least by way of a judgment for damages, to sell property which one does not own at the time the contract is made, as anyone who sells short on the stock market will quickly find out. Because the 3 September 1958 receipt contains neither expressly nor by necessary implication any agreement to sell, and because the "farm" referred to in the receipt is not identified in the receipt and no extrinsic source is designated ...


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