Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-01-13
COURT DECISIONS.
DICESTED BY w. 3. MARTIN.
Exclusively for virsin.an-PiloL)
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
JENNINGS v. poss.

Supreme Court of North Carolina,
December 8, 1892
ADVANTAGE OF THE STATUTE
OF FRAUDS CANNOT BE TAKEN
BY DEMURRER.
A VERBAL AGREEMENT TO RE-
UDAsD a MORTGAGE IS NOT
WITHIN THE STATUTE OF
FRAUDS. AND IS VALID.
The plaintim was the owner of q
tract OF land, described in the COM
plant, and at the same time one j. A.
Oanally was the owner OF Il tract of
land; this last tract was incumbered
by Il mortgage to the defendant;
Danally proposed an exchange of lands
with plaintiff: plaintiff refused to make
the exchange, unless defendant would
relinquish his lien thereon: defendant
stated to plaintiff that he would relin-
Quish his lien on Danallys land, and
take a lien on the land plaintiff should
convey to Danally in it's place; plain
Til, relying upon this promise, ex-
changed lands with Danally, and ex-
ecuted to Danally n deed to his tract,
conveying fee-slmple title latter plain
tiir and defendant had made their en-
change of lands, defendant refused to
relinquish his lien on Dand1ly's lands.
though Danally executed to defendant.
as ngreed, n mortgage on the land con-
veyed by plaintiff to Danally; in
making the exchange PLAINTIFF relied
entirely upon the promise of defendant
to rclinquish the lien; subsequent to
the exchange Of lands. defendant adj
vertised the land conveyed to plaintiff
pY Danally for sale; at this time Dan
ally was the owner of the land con-
Veyed to him by plaintiff: on day of
sale plaintiff was present, and had
made arrangements to buy the land
and reimburse himself by taking n lien
on the lands conveyed by him to Dan
ally. the sale was postponed, without
Piaintiils knowledge or consent, and In
consideration Of one dollar paid de-
PENDANT by Danally, for IL months; be-
1ore the time of extension expired.
Danally sold the land and thereby
made 1t impossible for plaintiff to pro-
tect himself: ut the end of the 12
months defendant again advertised tho
land FOR sale. The defendant demurred.
ore tenus. that the complaint did not
state fncts sufficient to constitute n
cause of action, in that the alleged con-
tract and agreement between the plain
tiff and defendant was by parol, and
void under the statute OF frauds. The
JNNoS' Dt'htS Ot tilftl OPINION, ulSSOlNGd
TIE restraining order,an dismissed the
action.
From this order the plaintiff ap-
pealed.
Tho court says:
There was error In the ruling below.
]. Advantage of the statute of frauds
cannot be taken in this State by de-
murrer, since that admits the contract.
The contract, through verbal Is valid
and binding unless the invaldity by
reason of the statute is set up by
answer.
q The statute OF frauds (Code, sec.
1850 requires only contracts to "sell
and convey" lands or interest therein
to be in writing, and hence verbal
agreement to release "a mortgage is not
within the statute.
B. Resides the above grounds, either
of which is sufficient. the fact set out
in the complaint and admitted by the
demurrer constitute an equitable estop-
pei upon the defendant. Reversed.