#### GEORGE E. WEANT v. W. F. McCANLESS.

(Filed 9 April, 1952.)

1. Pleadings § 31—

A motion to strike a further defense, cross-action and counterclaim, should not be allowed if the facts pleaded therein may be proven by competent evidence, and if so proven, would constitute a defense in whole or in part to the affirmative relief sought in the complaint.

2. Same—

A motion to strike defendant’s counterclaim on the ground that the contract therein alleged as the basis of the counterclaim is unenforceable under the statute of frauds should not be allowed, since the contract is enforceable unless the statute of frauds is properly pleaded.

3. Frauds, Statute of, § 3—

The defense of the statute of frauds must be pleaded by (1) admitting the contract and pleading the statute as a bar, (2) denying the contract and pleading the statute as a bar, (3) general denial of the contract and objection to parol testimony to prove it, and the defense of the statute may not be taken advantage of by demurrer or motion to strike.

Appeal by defendant from *Sink,*JNovember Term, 1951, of Row am.

*385Tbe plaintiff instituted tbis action in tbe Superior Court of Rowan County, 23 November, 1948, upon a note executed under seal by tbe defendant to tbe plaintiff on 9 December, 1938, payable six months after date, in tbe sum of $1,374.00.

Tbe defendant in bis answer admits tbe execution of tbe note and sets up a cross-action and counterclaim in wbieb be alleges, among other things, that in July or August, 1934, be was indebted to thé plaintiff in tbe sum of $7,874.00 for work and materials plaintiff, as a plumber and owner of a plumbing establishment, bad furnished him; that defendant offered to convey a bouse and lot owned by tbe defendant on South Main Street in Salisbury, N. C., for a credit of $1,500 on tbe plaintiff’s bill, and tbe plaintiff accepted tbe proposal; that defendant also conveyed a brick residence on Thomas Street in Salisbury to tbe plaintiff and for which tbe plaintiff agreed to give tbe defendant a credit of $5,000; that it was agreed between tbe parties that tbe defendant would execute a note for tbe balance due of $1,374.00 when called upon to do so, that it was further agreed between tbe parties at tbe time and before tbe delivery of tbe deed to either of tbe above properties, or tbe execution of tbe note, tbe plaintiff would reconvey tbe Thomas Street property to tbe defendant upon payment by tbe defendant of $5j000, and tbe balance on bis account of $1,374.00; that in tbe meantime tbe plaintiff was to apply tbe rents received from tbe Thomas Street property, after paying tbe taxes thereon, to tbe payment of interest on said indebtedness; that according to tbe terms of bis agreement with tbe plaintiff be has offered and tendered tbe plaintiff tbe sum of $5,000, and payment in full of defendant’s note of $1,374.00, and requested and demanded a deed from tbe plaintiff for tbe Thomas Street property but tbe plaintiff failed and refused to reconvey tbe same.

Tbe plaintiff filed a reply and admitted that tbe defendant was credited with tbe sum of $6,500 on bis account by reason of tbe conveyance to him of tbe two pieces of property described in tbe answer, but denied that any agreement, oral or written, was entered into for tbe reconveyance of tbe Thomas Street property, as alleged by tbe defendant, and pleaded tbe statute of frauds.

Thereafter, plaintiff made a motion to strike defendant’s further defense, cross-action and counterclaim, and tbe motion was allowed. Tbe defendant appeals to tbe Supreme Court, assigning error.

*Hudson <& Hudson for plaintiff, appellee.*

*Woodson & Woodson for defendant, appellant.*

DenNY, J.

A motion to strike a further defense, cross-action and counterclaim should not be allowed if tbe facts pleaded therein may be *386proven by competent evidence, and if so proven, such facts would constitute a defense in whole or in part to the affirmative relief sought in the complaint. *Williams v. Thompson,*227 N.C. 166, 41 S.E. 2d 359.

The test as to whether pleadings are relevant, on a motion to strike, is whether the pleader would be entitled to introduce evidence in support of the allegations sought to be stricken. *Williams v. Thompson, supra; Trust Co. v. Dunlop,*214 N.C. 196, 198 S.E. 645; *Patterson v. R. R.,*214 N.C. 38, 198 S.E. 364; *Pemberton v. Greensboro,*203 N.C. 514, 166 S.E. 396.

A parol contract to sell or convey land may be enforced, unless the party to be charged takes advantage of the statute of frauds by pleading it, or by denial of the contract, as alleged, which is equivalent to a plea of the statute. G.S. 22-2; *Allison v. Steele,*220 N.C. 318, 17 S.E. 2d 339; *Real Estate Co. v. Fowler,*191 N.C. 616, 132 S.E. 575; *McCall v. Institute,*189 N.C. 775, 128 S.E. 349; *Geitner v. Jones,*176 N.C. 542, 97 S.E. 494; *Arps v. Davenport,*183 N.C. 72, 110 S.E. 580; *Herndon v. R. R.,*161 N.C. 650, 77 S.E. 683; *Henry v. Hilliard,*155 N.C. 372, 71 S.E. 439; *Miller v. Monazite Co.,*152 N.C. 608, 68 S.E. 1.

It is settled in this jurisdiction that the provisions of the statute of frauds cannot be taken advantage of by demurrer. *McCampbell v. Building & Loan*Asso., 231 N.C. 647, 58 S.E. 2d 617; *Embler v. Embler,*224 N.C. 811, 32 S.E. 2d 619; *Real Estate Co. v. Fowler, supra; Stephens v. Midyette,*161 N.C. 323, 77 S.E. 243; *Hemmings v. Doss,*125 N.C. 400, 34 S.E. 511. Neither can such defense be taken advantage of by motion to strike. Such defense can only he raised by answer or reply. The statute of frauds may be taken advantage of in any one of three ways: (1) The contract may be admitted and the statute pleaded as a bar to its enforcement. *Bonham v. Craig,*80 N.C. 224; *Holler v. Richards,*102 N.C. 545, 9 S.E. 460; *Browning v. Berry,*107 N.C. 231, 12 S.E. 195, 10 L.R.A. 726; *Vann v. Newsom,*110 N.C. 122, 14 S.E. 519; *Jordan v. Furnace Co.,*126 N.C. 143, 35 S.E. 247; *Henry v. Hilliard, supra;*(2) the contract, as alleged, may be denied and the statute pleaded, and in such case if it “develops on the trial that the contract is in parol, it must be declared invalid.” *Embler v. Embler, supra; Jamerson v. Logan,*228 N.C. 540, 46 S.E. 2d 561, 15 A.L.R. 2d 1325; *Balentine v. Gill,*218 N.C. 496, 11 S.E. 2d 456; *Kluttz v. Allison,*214 N.C. 379, 199 S.E. 395; *Winders v. Hill,*144 N.C. 614, 57 S.E. 456; *Morrison v. Baker,*81 N.C. 76; or, (3) the party to be charged may enter a general denial without pleading the statute, and on the trial object to the admission of parol testimony to prove the contract. *Henry v. Hilliard, supra; Price v. Askins,*212 N.C. 583, 194 S.E. 284; *Allison v. Steele, supra; Embler v. Embler, supra; Jamerson v. Logan, supra.*

For the reasons stated, the ruling of the court below must be

Reversed.