
    W. L. HENRY et al. v. W. L. HILLIARD et al.
    (Filed 31 May, 1911.)
    1. Deeds and Conveyances — Lands—Parol Contract of Sale — Statute of Frauds — Pleadings.
    A vendee, under a parol contract in regard to land, after the payment of the purchase price, can compel the execution of the deed to him, when the statute of frauds is not pjeaded, the contract is not denied, and there is no objection to the evidence in his suit for its execution.
    2. Same — Consideration—Services of Surveyor.
    It appeared upon supporting evidence in the report of a referee appointed by the court, that an executor in the valid exercise of a power contained in the will of deceased respecting his lands, had employed a surveyor for the lands under a parol agreement that he should have certain designated lots thereof for the services thus to be rendered, and that the services so agreed upon were actually rendered by the surveyor. The statute of frauds was neither relied on nor pleaded by any of the parties, nor was any objection taken to the evidence tending to establish the parol sale of the lands. Reid, the surveyor was entitled to have a deed made to the lands under his parol agreement with the administrator, since deceased, and a decree made appointing a commissioner to execute the deed.
    
      Appeal from Cline, J., at tbe January Term, ,1911, of Haywood.
    Tbis is an action instituted a number of years ago by certain of tbe beirs of James E. Love, deceased, against W. L. Hilliard, tbe tben sole surviving executor of tbe last will and testament of said Love, by which will certain lands of tbe said Love, of which tbe land in question is a part, were devised to bis executors to be sold- and tbe proceeds divided among bis beirs at law.
    Some time after tbe institution of tbe action, Hilliard died, whereupon all tbe beirs at law of tbe said Love were made parties, and E. D. Gilmer was appointed by tbe court trustee, with all tbe power and authority of an executor under tbe will.
    During bis executorship, W. L. Hilliard employed tbe appellant, W. "W". Stringfield, as a surveyor, for tbe purpose of locating and surveying tbe lands belonging to- tbe estate, and agreed with tbe said Stringfield that be, tbe said Hilliard, would sell and convey to him tbe two tracts of land, mentioned in tbe petition of Stringfield, at tbe price of $11.25 per acre, tbe purchase price to be paid by Stringfield by services as surveyor.
    Tbe land referred to in tbis agreement was immediately surveyed and Stringfield entered into possession and has been in possession thereof for twenty years.
    After tbe death of Hilliard, Gilmer, trustee, recognized tbe claim of Stringfield, and continued to employ him as surveyor.
    At Fall Term, 1907, of tbe Superior Court for Haywood County, Mrs. M. E. Hilliard, one of tbe beirs at law of James E. Love, deceased, moved in tbe cause to require E. D. Gilmer, trustee, to account; and at tbe same time appellant, W. W. Stringfield, filed bis petition, set out in the record, alleging bis contract with Hilliard for tbe land in question, and that tbe purchase money bad been paid in full, and praying that tbe court direct tbe trustee to execute to him a deed for tbe land.
    To tbis petition no answer was- pled by any of tbe parties, and tbe whole matter, including tbe Stringfield claim, was referred by consent.
    It was admitted that tbe said Hilliard bad authority to make said contract with said Stringfield, and that tbe whole of the purchase price for the land had been paid. The original and supplemental report of the referee and the exceptions thereto are as follows:
    “The report of the undersigned referee would respectfully show that pursuant to the order of reference made at the Fall Term, 1907, of this court, a copy of which is hereto attached, I designated the 23d day of May, 1908, at 1 o’clock P. M., as the time when the hearing the matters referred to me would begin at the courthouse at "Waynesville, N. C., and gave notice by mail to the parties as I was advised and as shown by the first page of the evidence. _
    “The various hearings were had and the adjournments taken as therein noted.
    CLAIM OK W. W. STRINGEIELD.
    “The referee finds as facts:
    “1. That W. W. Stringfield began to act as agent for Dr. Hilliard, former trustee, in 1893 or 1894, and continued after the appointment of R. D. Gilmer as trustee in 1891. That he also acted as surveyor whenever needed and performed various services in and about the Love lands in both of said capacities.
    “2. That during the lifetime of W. L. Hilliard, former trustee, the said Stringfield made a verbal contract for the purchase of the two lots of land known as exceptions Nos. 70 and 71, in the deed from R. D. Gilmer, trastee, to S. A. Jones, of the boundaries therein given, and that the contract of purchase was never reduced to writing.
    “That the heirs at law and the trustee have recognized the said String-field’s claim to the said parcels of land, and that he has been in possession of the same for at least twenty years, and that the same were excepted from the deed to S. A. Jones by reason of and because of the said Stringfield’s claim thereto.
    “That on the 26th day of August, 1908, counsel for Mrs. M. E. Hilliard sent to the referee a paper-writing, which is marked Exhibit No. 203, in which it was stated as follows: ‘Mrs. Hilliard will not oppose a report to the effect that Stringfield is the owner of the land excepted in the Jones deed as sold to Stringfield; rather, she will consent to such a decree.’ And on tbe same day, R. G. A. Love and Maggie L. Marshall, by ber attorney in fact, banded to tbe referee a paper-writing in tbe following words and figures:
    “ ‘¥e hereby give our consent for Maj. W. ~W. Stringfield to be allowed bis amount in full as filed with you, and find as a fact ~W. W. Stringfield is entitled to tbe deed for 70 and 71 exceptions in tbe deed from R. D. Gilmer, trastee, to S. A. Jones for lands in Jackson County.’
    “This is also marked Exhibit No. 203.
    “And I concluded as a matter of law that "W. W. Stringfield is not entitled to a deed for the exceptions 70 and 71 in tbe Jones deed, the contract of purchase thereof not having been in writing, and tbe former trustee with whom said contract is claimed to have been made being dead; but in good conscience and equity, tbe said Stringfield is entitled to a judgment for $1,150.93, to be paid out of the funds now on band.
    “Your referee herewith sends all tbe evidence taken by and before him and tbe papers filed with him, and respectfully reports to the court that Iris actual expenses have been' paid, except tbe sum of $7 for tbe past two trips be made to "Waynes-ville, and that $100 has been paid to him as a part of bis allowance.” Signed in triplicate. Filed 4 October, 1910.
    SUPPLEMENTAL REPORT.
    “The referee desires to submit the following supplemental report, as to tbe claim of W. W. Stringfield, to that heretofore filed by him in tbe case, deeming it advisable to do so, because additional facts may be necessary, and that in bis conclusions of law that be finds an error has been made, as follows:
    “Add to findings of facts No. 2 tbe words, 'and fully paid for tbe same at tbe dates shown in Exhibit No. 2, in tbe amounts herein given.’
    “I desire to strike out tbe conclusions of law submitted and substitute in lieu thereof tbe following:
    “I conclude as a matter of law that said W. ~W. Stringfield is not entitled to a deed for tbe exceptions 70 and 71, tbe contract of purchase therefor not being in writing, and tbe former trustee, with whom said contract is alleged to have been made, being dead; but that in good conscience and equity be must be paid tbe sums shown to have been paid by bim for said exceptions, witb interest from tbe date on wbicb tbey were paid; unless by agreement tbe beirs convey said exceptions to bim.
    “That said W. W. Stringfield is entitled to a judgment for $1,150.93, balance of account.
    “This tbe 4tb day of October, 1910.”
    Filed 4 October, 1910.
    EXCEPTIONS OE W. W. STRINGFIELD TO THE REPORT AND THE.
    SUPPLEMENTAL REPORT OE REFEREE.
    “Tbat whereas tbe said referee found as a fact tbat there was a verbal contract made between W. L. Hilliard, one of tbe executors and trustees of tbe said Love estate, who bad power to make said contract witb W. W. Stringfield, whereby W. L. Hilliard, former trustee, sold to said ~W. W. Stringfield tbe said lands known as exceptions Nos. 70 and 71 in tbe deed from R. D. Gilmer, trustee, to S. A. Jones; and wbereas tbe said referee found as a fact tbat the said land was fully paid for by tbe said W. W. Stringfield, who has been in possession for more than 20 years ; and wbereas tbe said referee in bis said reports found as a fact tbat tbe beirs at law and those who are interested therein recognize tbe right and claim of the said Stringfield to bave a deed to said land, and filed no plea of objection to bis said claim and petition for title deed to said land in tbe hearing of tbis cause or at any other time; all wbicb facts tbe -said jtetitioner, "W. W. Stringfield, admits to be true.
    “That tbe said referee in bis said reports erred in bis conclusions of law upon tbe above found facts whereby be concluded as a matter of law tbat tbe said Stringfield was not entitled to a deed for said land because it was a verbal contract made with W. 'L. Hilliard, former trustee, who' is dead. Tbe said referee should bave found as a conclusion of law tbat tbe said ~W. W. Stringfield was entitled to a.deed to tbe said exceptions Nos. 70 and 71 in tbe deed from R. D. Gilmer, trustee, to said S. A. Jones.
    
      “Wherefore, the said "W. W. Stringfield prays tbe court to correct and modify said report and to issue a decree appointing a commissioner to execute a deed to tbe said Stringfield for tbe said land. W. J. HanNah,
    
      "Attorney for said W. W. Stringfield
    
    A judgment was rendered overruling tbe exceptions to tbe report, and bolding tbat tbe said Stringfield was not entitled to a conveyance of tbe land, but tbat be could recover tbe purchase money paid by him, from which judgment this appeal is taken.
    No pleading was filed relying on tbe statute of frauds, or denying tbe contract, and no objection to evidence was entered except by Mrs. Hilliard, and this has been withdrawn.
    
      W. T. Crawford for plaintiff.
    
    
      Adams & Adams for defendant.
    
   AlleN, J.,

after stating the case. A single question is presented by this appeal, and that is, Can tbe vendee, under a parol contract in regard to land, after payment of tbe purchase price, compel tbe execution of a deed to him, when tbe statute of frauds is not pleaded, the contract is not denied, and there is no objection to the evidence? Tbe authorities seem to be uniform tbat tbe vendee is entitled to a conveyance under such circumstances.

In Oye., vol. 20, page 312, note 4, tbe decisions of tbe highest courts of sixteen States are cited in support of tbe text, tbat, “If be (tbe vendor) admits tbe making of tbe contract, and fails to claim tbe benefit of tbe statute, or to demur, be will be taken to have waived it.”

Browne on Stat. Frauds, sec. 135, says: “As tbe statute of frauds affects only tbe remedy upon the contract, giving the party sought to be charged upon it a defense to an action for tbat purpose, if tbe requirements of tbe statute be not fulfilled, it is obvious tbat be may waive such protection, or rather, tbat, except as be undertakes to avail himself of such protection, tbe contract is perfectly good against him.”

Also, Story Eq. PL, sec. 763 : “It seems now understood that this plea extends to the discovery of the parol agreement, as well as to the performance of it; although, it has been said that the defendant is compellable by answer, or by plea, to admit or to deny the parol agreement, stated in the bill. But this seems utterly nugatory, for it is now well settled that if the defendant should, by his answer, admit the parol agreement, and should insist upon the benefit of the statute, he will be fully entitled to it, notwithstanding such admission. But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby renounced the benefit of the statute.”

The decisions of this Court announce the same doctrine.

In Loughran v. Giles, 110 N. C., 426, the 'Court says: “The statute of frauds (said Justice Ruffin in McRacken v. McRacken, 88 N. C., 276) was intended to ‘close the door upon temptations to commit perjury and the assertion of feigned titles to property.’ The evil intended to be guarded against in the enactment of the statute was the attempt to enforce pretended verbal agreements by resorting to perjury, and though it became necessary in attaining this end to put it in the power of a party to avoid, at his election, his own verbal promise to convey land, the statute was not construed as a declaration that all such contracts not in writing and signed by the party to be charged were to be treated, ipso facto, as null and void. Wilkie v. Womble, 90 N. C., 254; Green v. R. R., 77 N. C., 95; Davis v. Inscoe, 84 N. C., 396.

‘A verbal contract for the sale of land, tenements, or hereditaments, or any interest in or concerning them (said the Court in Thigpen v. Staton, 104 N. C., 40), is good between the parties to it, and will be enforced if they agree upon its terms, and the party to be charged, does not plead the statute.’ ’’

The cases of Syme v. Smith, 92 N. C., 338; Thigpen v. Staton, 104 N. C., 40, and Hall v. Lewis, 118 N. C., 510, are to the same effect. The rule does not, however, apply except when there is no denial of the contract, and the statute is not pleaded.

Tbe party to be charged may simply deny tbe contract alleged, or deny it and set up a different contract, and avail bimself of tbe statute, without pleading it-, by objecting to tbe evidence; or be may admit tbe contract and plead tbe statute; and in either case tbe contract cannot be enforced. Browning v. Berry, 107 N. C., 235; Jordan v. Furnace Co., 126 N. C., 147; Winders v. Hill, 144 N. C., 617.

We are of tbe opinion there was error in tbe ruling of tbe court on tbe record, as it is presented to us, and that tbe appellant is entitled to- a conveyance as prayed.

Eeversed.  