
    CHARLES FORD v. A. STROUD.
    (Filed 24 March, 1909.)
    1. Contracts to Convey Land — Parol Contracts, Breach of — Equity— Assumpsit Implied — Improvements—Moneys Had and Received.
    While a parol contract to convey land is void, the law will grant relief against the vendor, failing to make title, in favor of the vendee, who has entered into possession, paid a part of the purchase price and put permanent improvements upon the land, and will permit a recovery of the money paid on account of the purchase price and the cost of the improvements to the extent of the enhanced value, less reasonable rents and profits while in possession.
    2. Contracts to Convey Land — Parol Contract — Purchase Money— Improvements — Possession—Assumpsit.
    A vendee who, while in possession of lands under a parol contract to convey, has paid á part of the purchase price and put permanent improvements thereon is entitled to his equitable remedy, upon an implied assumpsit, for money had and received, after surrendering possession, when his vendor cannot make title.
    AotioN tried before Lyon, Jand a jury, at April Term, 1908, of Columbus.
    Plaintiff sues for tbe recovery of money paid defendant on account of tbe purchase money of a tract of land under a parol contract to purchase, and for compensation for improvements put upon tbe land while in possession under the contract. He sets out his contract in his complaint, alleges the payment of the money and that he put the improvements on the land, and the z’efusal of defendant to make a deed. Defendant does not specifically deny these allegations, but sets up new matter, by way of avoidance, etc. . Plaintiff testified that defendant proposed to sell him the land and he agreed to buy it for $750. He paid defendant $200 on account of the purchase money and went into possession. The contract was not reduced to writing. Defendant paid an additional $200, stayed on the land two years, making valuable improvements, buildings, etc., and “had to leave.” Defendant returned $80 of the amount paid. When plaintiff, demanded .of defendant a deed for the land he told him to call' on Mr. D. L. Gore, who would make the deed; that he went to Mr. Gore to get a deed and he refused to give him one. “I told defendant tbat I wanted bim to give my money back, and be refused to do so. Mr. Gore said be would not make me a deed unless I would take all of tbe land. I offered to pay Mr. Gore tbe balance of tbe money on tbe piece of tbe land, as defendant told me to do. * * * Defendant said be bad a bond for title. I could not get a deed from Gore nor from defendant for tbe land, altbougb I was ready to pay tbe money and offered to do so.” Defendant objected to tbis testimony and duly excepted to its admission. Plaintiff testified, without objection, tbat be put improvements on tbe land, giving estimate of value. Defendant offered no evidence, but moved for judgment of non-suit, wbicb was denied, and be excepted. Defendant tendered issues, wbicb bis Honor refused to submit. Exception.
    Tbe following issues were submitted to tbe jury:
    1. “Did defendant contract witb plaintiff to sell plaintiff tbe tract of land described in tbe complaint?
    2. “Is tbe defendant indebted to plaintiff on account of money paid to bim on purchase price of said land, and if so, wbat amount ?
    3. “Is tbe defendant indebted to plaintiff on account of improvements of said land, and if so, wbat amount?”
    Defendant excepted.
    Tbe only portion of bis Honor’s charge to wbicb exception was taken, and wbicb is set out, is as follows: “If they found from tbe evidence and by tbe greater weight thereof, tbe burden being on the pláintiff, tbat tbe plaintiff complied witb bis part of tbe contract, or offered to comply witb said contract, and tbat be tendered D. L. Gore tbe amount for said land under tbe contract, and tbat Gore refused to receive same and make title to tbe plaintiff unless plaintiff would take it and pay for more land than be bad contracted for, tbe court charges you tbat it was not necessary for tbe plaintiff to tender tbe actual cash to tbe said Gore.”
    There was a verdict for plaintiff on all of tbe issues. Judgment, and appeal.
    Plaintiff not represented in this Court.
    
      H. McClammy for defendant.
   Connor, J.

The defendant’s motion for judgment of nonsuit presents the merits of the appeal. The motion admits the plaintiff’s testimony to be true. If 'upon these facts he is entitled to maintain the action, the rulings in regard to the admission of evidence and the instructions are correct. While the answer does not specifically admit the allegation in the complaint in regard to the contract, it does not contain a general or specific denial, as required by the Code of Procedure. We think that, upon both reason and authority, the plaintiff is entitled to maintain his action and recover the amount' paid on account of the purchase money and compensation for his improvements to the extent of the enhanced value of the land, less profits made by him while in possession. It is true that the contract of purchase, being in parol, is void. It appears that defendant was not able to'make title until, by complying with the terms of a bond which he held from D. L. Gore, he acquired one himself, and this he has failed to do, resulting in plaintiff’s losing the land. In Ellis v. Ellis, 16 N. C., 402, it was held that a party who had paid the purchase money for land, under a parol contract, which was repudiated by the vendor, was not entitled to maintain a bill in equity, either for specific performance, because of the statute of frauds, or for the amount paid on the purchase price. The reason given by Ruffin, G. J., is: “Because, so far as concerns the land, the contract is merely void, and the money can be recovered at law in an action for money had and received.” There is in such cases a total failure of consideration; and as it would be inequitable to permit the vendor to repudiate his contract and retain the money paid upon it, the law gives to the vendee an equitable action, based upon an implied assumpsit, for money had and received. The right to be reimbursed for the payment of the purchase money on a parol contract for the purchase of land, repudiated by the vendor, and have compensation for betterments made while in possession under the contract, has in many cases been enforced by courts of equity by enjoining the eviction of the vendee until the money paid on the purchase price has been repaid and compensation for improvements made. In Albea v. Griffin, 22 N. C., 9, the bill was for specific performance of the contract. The defendants relied upon the statute of frauds, the contract being in parol. Gaston, J., said: “We admit tbis objection to be well founded, and we bold, as a consequence from it, tbat, tbe contract being void, not only its specific performance cannot be enforced, t but tbat no action will lie, in law or equity, for damages because of nonperformance. But we are, nevertheless, of tbe opinion tbat plaintiff lias an equity wbicb entitles bim to relief, and that parol evidence is admissible for tbe purpose of showing tbat equity. Tbe plaintiff’s labor and money have been expended on improving property which the ancestor of tbe defendants encouraged bim to expect should become bis own, and, by tbe act of God or tbe .caprice-of tbe defendants, tbis expectation has been frustrated. Tbe consequence is a loss to bim and a gain to them. It is against conscience Ibat they should be enriched by gains thus acquired, to bis injury.” Baker v. Carson, 21 N. C., 381. In Dunn v. Moore, 38 N. C., 364, relief was denied because tbe contract set up in tbe bill was denied. Nash, J., said tbat if defendant bad admitted tbe contract tbe court would not have permitted him to put plaintiff out “without returning the money be bad received and compensating him for bis improvements.” "While in tbe case at bar tbe contract is not denied, if it bad been we should not hesitate to follow, tbe decision in Luton v. Badham, 127 N. C., 96, in wbicb Mr. Justice Fu/rches reviews tbis and all of tbe other cases, and shows conclusively tbat tbe right to relief cannot be defeated by a mere denial of the contract. See tbe very able and, tbe writer thinks, conclusive opinion of Smith, C. J., in McCracken v. McCracken, 88 N. C., 272. Certainly tbis cannot be done where tbe action is for tbe recovery of -the purchase money, as upon an implied assumpsit for money bad and received or for money paid -for a consideration which has failed. In Daniel v. Crumpler, 75 N. C., 184, Rodman, J., says tbat tbe right to recover tbe purchase money and compensation for improvements against one who has repudiated bis parol contract to convey land “stands on general principles of equity.” As said by Judge Fu/rches, in Luton v. Badham, supra, all of tbe cases are based upon tbis theory. It is doubtful whether, prior to tbe abolition of tbe distinction between actions at law and suits in equity, an action could have been maintained at law for compensation for improvements put upon land by tbe vendee. Tbe court of equity bad granted relief by enjoining tbe eviction of tbe vendee by tbe vendor, wbo bad repudiated bis contract,, until be bad made compensation for improvements. Whatever difficulty was encountered because of technical rules of pleading disappear when forms of action are abolished and a plaintiff recovers upon tbe facts stated in bis complaint and proven upon the trial. Tbe careful review of tbe authorities and satisfactory discussion in tbe opinion in Luton v. Badham, supra, and tbe dissent of Smith, (7.. J., in McCracken’s case, supra, relieves us of tbe duty of doing more than ,to refer to them. It is interesting to observe tbe trend of thought upon tbe subject, as illustrated in tbe decided cages, showing bow tbe law “works itself pure” and enforces tbe maxim that “There is no wrong without a remedy.” If, as said by Judge daston, it is inequitable for a man to make a parol contract to sell land, receive tbe purchase money and encourage tbe vendee to make improvements on it, and, by repudiating tbe contract, retain tbe money and take tbe land, with its enhanced value, certainly tbe court must find some way, either preventive or remedial, to make him “do equity.” We think that it has done so. We cannot perceive any good reason for saying that, so long as tbe vendee retains possession under tbe contract, be will be protected in bis right, but if, seeing that be can get no title, be surrenders possession, be is without remedy. His Honor correctly denied tbe motion for judgment of nonsuit and admitted tbe evidence of tbe contract. It seems that defendant bad purchased a body of land from Gore, of which be sold plaintiff only a portion, and that be owed Gore on account of tbe purchase money more than plaintiff owed defendant. Plaintiff was under no obligation to pay Gore any more than be owed defendant; hence tbe contention about tbe validity of tbe tender to Gore by plaintiff is without merit. Plaintiff was under no obligation to Gore — had made no contract with him. Defendant was in default in not perfecting bis title and conveying to plaintiff according to bis contract. We find no error in tbe portion of tbe charge set out in tbe record. Tbe remainder is presumed to be correct. Tbe issues submitted present tbe matter in controversy. Upon an inspection of tbe entire record, we find

No Error.  