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Northwestern Bank v. Church

Filed: November 6, 1979.

THE NORTHWESTERN BANK, TRUSTEE UNDER THE WILL OF D.C. DUNCAN, DECEASED
v.
HAL E. CHURCH



Appeal by defendant from Davis, Judge. Judgment entered 16 October 1978 in District Court, Alleghany County. Heard in the Court of Appeals 20 September 1979.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

Counsel for both plaintiff and defendant concur that this appeal turns upon whether the receipt given by plaintiff was a sufficient memorandum of the contract to meet the requirements of the Statute of Frauds. There is no genuine issue of material fact in dispute. The question is the application of law to the facts. We hold that under the facts of this case the receipt was a sufficient memorandum of the contract.

The paperwriting in dispute reads:

Received from Hal Church $10,150.00 representing 29% down payment on 42' x 154' lot located on Main Street, Sparta, N.C. belonging to the D.C. Duncan Estate.

This the 17th day of January 1978.

The Northwestern Bank, Trustee

by: Lewis H. Bryant

Defendant's check for $10,150, payable to "D.C. Duncan Estate," contained the following: "For Lot 42' x 154 -- Sparta."

The Statute of Frauds, N.C.G.S. 22-2, provides all contracts to sell and convey real property "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."

The writing must disclose, at least with sufficient definiteness to be aided by parol, the terms of the contract, the names of the parties, grantor and grantee, and a description of the property. Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833 (1956); Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593 (1946). The memorandum may be informal and more than one writing may be relied upon. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965). The description must be certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. Searcy v. Logan, supra.

The application of these rules to the facts in this case leads us to the conclusion that the Statute of Frauds does not bar the contract to convey the property to defendant. The writing identifies the parties to the agreement: Hal Church and The Northwestern Bank, Trustee of the D.C. Duncan Estate. It is signed by the party to be charged, The Northwestern Bank, Trustee. It contains the terms of the contract, sufficient to be completed by parol, by referring to the $10,150 received from Church as representing 29 percent down payment. Where the vendor is the party to be charged ...


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