
    Henry Garret vs. T. W. Malone.
    Plaintiff conveyed to defendant a tract of land as containing one hundred and ten acres, at eight dollars per acre; and it was verbally agreed between them, that the land should be surveyed, and if it turned out that it contained less than one hundred and ten acres plaintiff should refund, and if it ■ contained more, defendant should pay for all over one hundred and ten acres at the rate of eight dollars per acre: — Held, that the agreement was not within the fourth section of the statute of frauds; and that plaintiff’s promise was a sufficient consideration to support defendant’s.
    BEFOBE MUNBO, J., AT UNION, SPRING TERM, 1855.
    The report of Ms Honor, the presiding Judge, is as follows:
    “ The plaintiff, in his declaration, counted on the following parol agreement: “ that the said defendant was indebted to the said plaintiff upon an agreement, that forasmuch as the said plaintiff had, before that time, to wit,” &c., “sold and conveyed by deed, to. the said defendant, a certain tract of land, by metes and bounds, for one hundred and ten acres, at and for the price of eight dollars per acre, the said defendant then and there undertook, and then and there promised to have the land accurately surveyed by one Giles N. Smith, and then'and there faithfully promised that if he, the said plaintiff, would undertake and promise to pay him back, or refund to him, the said defendant, eight dollars per acre for each acre in the amount of land less thanfone hundred and ten acres, as should be ascertained by the said survey, that he, the said defendant, would undertake and assume to pay. to the said plaintiff, the like sum of eight dollars per acre for each acre of land exceeding one hundred and ten acres, that should be ascertained by the said surveyor, in the said tract of land; and then and there the said plaintiff promised and undertook, &c.; in consideration whereof, the said defendant promised and undertook to perform the said agreement, and at the mutual instance and request of the said defendant, and the said plaintiff, the said Giles N. Smith did accurately survey and measure the said tract of land, when it appeared that the said tract contained one hundred and eighteen acres; by reason whereof, and by virtue of the agreement, the said defendant became indebted to the said plaintiff, in the sum of,” &c.
    “ As the evidence to sustain the foregoing agreement rested entirely in parol, its introduction was opposed by the defendant upon the ground that it was in direct conflict with the provision of the statute of frauds. I sustained the objection, .upon which the plaintiff submitted to a non-suit with leave to move to set it aside.”
    The plaintiff appealed and now moved this Court to set aside the non-suit, on the grounds:
    1. Because his Honor, the presiding Judge, decided that parol evidence was inadmissible to prove the agreement set out in the declaration, and that the statute of frauds was a bar to the plaintiff’s action.
    2. Because there was a good and sufficient consideration stated in the declaration, for the promise made by the defendant to the plaintiff.
    
      Gtoudelook, for appellant.
    
      Herndon, contra.
   The opinion of the Court was delivered by

Glover, J.

The 4th section of the statute of frauds provides, that “ no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing,” &e., (2 Stat. 525).

There are contracts where the subject-matter of the agreement would seem to partake of the realty and which have been held not to be within this section of the statute. In the case of growing crops, it has been decided that only a sale of goods, as the produce of the soil, was contemplated, and that it did not relate to lands. (Sainsbury vs. Matthews, 4 Mee. and W. 343.) In the case of Hoby vs. Roebuck and Palmer, (7 Taunt. 157,) the landlord, after granting a lease in consideration that the tenant would pay an additional sum per annum, agreed to enlarge the demised premises, and it was held, that the original lease still existed; that the new contract was, therefore, no demise of the premises, and that it was merely a collateral agreement to pay so much more money, during the residue of the term, provided the lessor would make the necessary expenditure. And in a late case, (Jeakes vs. White, 14 Eng. Law and Equity, R. 350,) in consideration that the plaintiff would advance £2000 upon the security of a mortgage of land, the defendant agreed to pay all the expenses incurred by the plaintiff in investigating the defendant’s title to mortgage the lands, the Court held, that such an agreement was not within the 4th Section of the statute of frauds.

The contract of the defendant to pay, if there should be more than one hundred and ten acres, is not such an interest in or concerning lands as the statute contemplates. It is an agreement relating to the number of acres conveyed, and is a collateral undertaking and independent of the realty.

The plaintiff’s promise to refund if, on a survey, there should be a deficiency, is a good consideration to support the defendant’s promise to pay in the event of an excess. Mutual promises create reciprocal ebligations which constitute a sufficient consideration to support such promises. They are pot naked facts, but voluntary agreements resting on the mutuality of their obligations.

Howe vs. O’Malley (1 Murphy, N. C. R. 287,) is, in all its leading circumstances, this case, and was decided on the ground, that where the promises are mutual, one is a good consideration to support the other. x

Motion granted.

O’Neall, Wakdlaw, WithbRS and Whither, JJ., concurred.

Motion granted.  