Pope v. McPhail

Hoke, J.

Tbe evidence on tbe part of tbe plaintiff tended to show that in July, 1911, defendant entered into an oral contract with plaintiff to sell tbe latter a tract of land in Sampson County, N. C., of 640 acres, sufficiently designated and described, for tbe sum of $7,000, to be evidenced by plaintiff’s notes, one for $2,500, due 1 September, 1911, and a second note for $4,500, due 1 December, 1912, and that, pursuant to said verbal contract, defendant and wife prepared and signed a deed for tbe property and for tbe consideration stated, which was duly probated, purporting to convey the said land to plaintiff, and plaintiff and wife executed promissory notes due and a mortgage on tbe land to secure tbe same, and these papers, with a memorandum in writing also signed by tbe parties, were delivered to tbe Bank of Clinton, N. C., to bold in escrow until defendant could secure a complete title to tbe land which be was selling, tbe memorandum referred to being to tbe effect that tbe papers should be held in escrow, etc.; that in violation of tbe contract defendant McPbail took tbe papers from tbe Bank of Clinton or in some way procured tbe same, and having destroyed bis deed, sold and conveyed tbe land to a third party at an advance price of $1,900, tbe purchaser now bolding the land under a deed duly registered. Upon this testimony tbe motion for nonsuit was properly overruled, and, tbe jury having found the same to be true, plaintiff has a clear right of action. While there is much authority to the contrary, it is tbe rule in this jurisdiction that when parties, having entered into an oral contract to sell land, prepare and *240 sign a written deed substantially expressing tbe bargain, and deliver the same in escrow, such a deed is a sufficient “memorandum” within the -meaning and requirement of our statute of frauds, and the contract may be considered and dealt with as a valid and binding agreement.

We so held at the present term, in Vinson v. Pugh, p. 190, As sociate Justice Brown delivering the opinion, and Flowe v. Hartwick, 167 N. C., 452 , and Magee v. Blankenship, 95 N. C., 563 , are in recognition of the principle. A similar ruling has been made in other States by courts of recognized authority.

Moore v. Ward, 71 W. Va., 393 ;

Pavill v. McKinley, 50 Va., 1 ;

Bowles v. Woodson, 47 Va., 78 ;

Johnston v. Jones, 85 Ala., 286 , and Campbell v. Thomas, 42 Wis., 437 , seem to sustain the position. Plaintiff, then, having a valid contract to purchase the land, which was wrongfully broken by defendant, is entitled to recover the damages he has sustained by the breach. This being a contract to convey land, he has ordinarily an additional remedy by action for specific performance.; but he is not confined to that in any case. He can always avail himself of an action for damages for such wrong if he so elects, Warren v. Dail, 170 N. C., 406 , a right emphasized in this instance by the fact that defendant has conveyed the property to a third person, who holds by conveyance of prior registry, and plaintiff’s remedy, by specific performance, is no longer available.

There is no error, and judgment in plaintiff’s favor is affirmed.

No error.