§ 22-1. Contracts charging representative personally; promise to answer for debt of another.

No action shall be brought whereby to charge an executor, administrator or collector upon a special promise to answer damages out of his own estate or to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged therewith or some other person thereunto by him lawfully authorized.

History

(29 Charles II, c. 3, s. 4; 1826, c. 10; R.C., c. 50, s. 15; Code, s. 1552; Rev., s. 974; C.S., s. 987.)

Cross References. - As to promise or acknowledgment of new or continuing contract from which statute of limitations may run, see G.S. 1-26.

As to waiver or renunciation of claim of right after breach, see G.S. 25-1-107.

As to statutes of frauds for personal property, see G.S. 25-1-206, 25-2-201, 25-2-209, 25-8-319.

As to letters of credit being in writing, see G.S. 25-5-104.

As to contracts for sale of investment securities, see G.S. 25-8-319.

As to formal requisites of personal property security agreements and financing statements, see G.S. 25-9-203, G.S. 25-9-402.

As to contracts to refrain from business in given territory, see G.S. 75-4.

Legal Periodicals. - For case law survey as to statute of frauds, see 45 N.C.L. Rev. 907, 966 (1967).

For note discussing the application of the main purpose rule in the statute of frauds, see 54 N.C.L. Rev. 117 (1975).

For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

• I. In General.
• II. Promise of Representative to Answer from Own Estate.
• III. Promise to Answer for Debt of Another.
  • A. In General.
  • B. Illustrative Cases.

I. IN GENERAL.

The purpose of the statute of frauds is to prevent fraud upon individuals charged with participation in transactions coming within its purview, and not upon the public at large. Allison v. Steele, 220 N.C. 318, 17 S.E.2d 339 (1941).

The purpose of this section is to protect the promisor from the promisee. Brad Ragan, Inc. v. Callicut Enters., Inc., 73 N.C. App. 134, 326 S.E.2d 62 (1985).

Construction Taking Cases Out of Statute Should Not Be Extended. - The relaxing of the construction of the statute of frauds, under which so many cases which seem to be within its letter have been taken out of its operation, ought not to be extended further than it has already been carried. Grant v. Naylor, 8 U.S. (4 Cranch) 224, 2 L. Ed. 603 (1808).

Definiteness of Subject Matter of Contract. - The principle that no contract can be enforced unless the subject matter upon which it is intended to operate can first be definitely ascertained from its terms, either through an explicit description therein or a reference which points to extrinsic means of identification, applies to verbal agreements as well as to those required by this section to be in writing. Hemphill v. Annis, 119 N.C. 514, 26 S.E. 152 (1896).

G.S. 75-4 is consistent with the other "statute of frauds" provisions in the law, including this section and G.S. 25-2-201(1). Manpower of Guilford County, Inc. v. Hedgecock, 42 N.C. App. 515, 257 S.E.2d 109 (1979).

Contracts for Services. - There is no requirement in this State that contracts for services not to be performed within a year be in writing and signed by the party to be charged therewith. Messer v. Laurel Hill Assocs., 93 N.C. App. 439, 378 S.E.2d 220 (1989).

Oral Contract to Compensate Real Estate Broker Not Required to be in Writing. - In a case in which a real estate agent and his company sued a real estate broker and two of the broker's development companies for breach of an express contract, the broker and his two companies unsuccessfully argued that 21 N.C. Admin. Code 58A.0104(a), established by the North Carolina Real Estate Commission required real estate agency brokerage contracts to be in writing in order to be enforceable. Under more than 100 years of prevailing case law in North Carolina, oral contracts to compensate a real estate broker for his or her professional services were not required to be in writing under the North Carolina Statute of Frauds, G.S. 22-1 et seq. Scheerer v. Fisher, 202 N.C. App. 99, 688 S.E.2d 472 (2010).

Applied in Howard v. Hamilton, 28 N.C. App. 670, 222 S.E.2d 913 (1976); Mack Fin. Corp. v. Harnett Transf., Inc., 42 N.C. App. 116, 256 S.E.2d 491 (1979); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556 (1981); Dealers Specialties, Inc. v. Neighborhood Hous. Servs., Inc., 54 N.C. App. 46, 283 S.E.2d 155 (1981).

Cited in Coxe v. Dillard, 197 N.C. 344, 148 S.E. 545 (1929); Newburn v. Fisher, 198 N.C. 385, 151 S.E. 875 (1930); Strayhorn v. Aycock, 215 N.C. 43, 200 S.E. 912 (1939); General Tire & Rubber Co. v. Distribs., Inc., 253 N.C. 459, 117 S.E.2d 470 (1960); Baker v. Malan Constr. Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); Chance v. Jackson, 17 N.C. App. 638, 195 S.E.2d 321 (1973); Bowling v. Hines, 17 N.C. App. 697, 195 S.E.2d 377 (1973); Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616 (1985); Burnette Indus., Inc. v. Danbar of Winston-Salem, Inc., 80 N.C. App. 318, 341 S.E.2d 754 (1986); Forbes Homes, Inc. v. Trimpi, 318 N.C. 473, 349 S.E.2d 852 (1986).

II. PROMISE OF REPRESENTATIVE TO ANSWER FROM OWN ESTATE.

Oral Promise by Representative Is Void. - A promise by the administrator that he would see that a debt of his intestate is paid, or that he would pay it, is void under this section, unless made in writing. Smithwick v. Shepherd, 49 N.C. 196 (1856).

If It Is to Pay Out of His Estate. - The agreement, in order not to be enforceable unless in writing, must be to pay out of the representative's own estate. Norton v. Edwards, 66 N.C. 367 (1872).

III. PROMISE TO ANSWER FOR DEBT OF ANOTHER.

.

A. IN GENERAL.

.

Section Is Not Applicable to Action on Parol Trust. - The portion of this section providing in substance that an action on a promise to pay the debt of another may not be maintained unless the agreement upon which it is based shall be in writing, and signed by the party charged, or by some other person lawfully authorized, is not applicable to an action on a parol trust. Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525 (1948).

Plaintiff alleged that her employer changed the beneficiary in a policy of insurance on his life to another employee under an agreement, understood, discussed and acquiesced in by all parties, that upon his death such other employee would pay out of the proceeds of such insurance the balance due on a mortgage on plaintiff's home, and thus recompense both employees for services faithfully rendered. It was held that the action was one to establish a parol trust and not one to recover on a promise by the employer to answer for the debt of plaintiff, and therefore this section had no application. Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525 (1948).

Or to Promise Creating Original Obligation. - The clause relating to promise to answer for the debt, default, miscarriage, etc., of another does not apply to a promise in respect to debts created at the instance and for the benefit of the promisor. But it applies only to those by which the debt of one party is sought to be charged upon and collected from another. Davis v. Patrick, 141 U.S. 479, 12 S. Ct. 58, 35 L. Ed. 826 (1891).

This section does not apply where it is in the nature of an original promise. Hickory Novelty Co. v. Andrews, 188 N.C. 59, 123 S.E. 314 (1924). See Sharp v. Tatham, 205 N.C. 827, 170 S.E. 654 (1933); Gennett v. Lyerly, 207 N.C. 201, 176 S.E. 275 (1934).

Whenever the main purpose and object of the promisor is not to answer for another but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability. Warren v. White, 251 N.C. 729, 112 S.E.2d 522 (1960); Burlington Indus., Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974).

Where the promise is for the benefit of the promisor, and he has a personal, immediate, and pecuniary benefit in the transaction, or where the promise to pay the debt of another is all or part of the consideration for property conveyed to the promisor, or is a promise to make good notes transferred in payment of property, the promise is valid although in parol. If, however, the promise does not create an original obligation, and it is collateral, and is merely superadded to the promise of another to pay the debt, he remaining liable, the promisor is not liable, unless there is a writing; and this is true whether the promise is made at the time the debt is created or not. Myers v. Allsbrook, 229 N.C. 786, 51 S.E.2d 629 (1949).

An agreement by a mortgage company with a lumber dealer to pay for lumber to be used in the construction of a building on the mortgaged premises is an original promise which does not come within the purview of the statute of frauds and parol evidence of such agreement is competent. Pegram-West v. Winston Mut. Life Ins. Co., 231 N.C. 277, 56 S.E.2d 607 (1949).

The following illustrates when a promise comes within the provisions of this section. If, for instance, two persons come into a store and one buys and the other, to gain him credit, promises the seller, "If he does not pay you, I will," this is a collateral undertaking and must be in writing; but if he says, "Let him have the goods and I will pay," or "I will see you paid," and credit is given to him alone, he is himself the buyer, and the undertaking is original. Goldsmith v. Erwin, 183 F.2d 432 (4th Cir. 1950).

There has been carved out an exception to this section where the promisor has such a direct, immediate, pecuniary interest in the subject matter of the principal debtor's contract so as to indicate that the guarantor has intended to adopt the original contract as his own. This exception is known as the "main purpose rule." Burlington Indus., Inc. v. Foil, 19 N.C. App. 172, 198 S.E.2d 194 (1973), aff'd, 284 N.C. 740, 202 S.E.2d 591 (1974).

North Carolina has long recognized an exception to the statute of frauds, generally referred to as either the "main purpose rule" or the "leading object rule." Generally, if it is concluded that the promisor has the requisite personal, immediate and pecuniary interest in the transaction in which a third party is the primary obligor, then the promise is said to be original rather than collateral and therefore need not be in writing to be binding. Burlington Indus., Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974); McKenzie Supply Co. v. Motel Dev. Unit 2, Inc., 32 N.C. App. 199, 231 S.E.2d 201 (1977); Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702 (1980).

The promise to pay the debt of another is outside this section and enforceable if the promise is supported by an independent and sufficient consideration running to the promisor. This rule is generally referred to as the "main purpose rule" or the "leading object rule." McKenzie Supply Co. v. Motel Dev. Unit 2, Inc., 32 N.C. App. 199, 231 S.E.2d 201 (1977).

As Where the Other Does Not Remain Liable. - The general rule is that a promise to answer for the debt, default or miscarriage of another for which that other remains liable, must be in writing to satisfy this section. It is otherwise when the other does not remain liable. Mason v. Wilson, 84 N.C. 51 (1881).

In order for the defendant to fall within the protection of the statute, it must be shown that the debt is that of a third person who still continues liable for the same. If the debt is an original obligation of the defendant, or if the creditor in accepting the promise of the defendant has released a third person who was the original debtor, the statute has no application. Sheppard v. Newton, 139 N.C. 533, 52 S.E. 143 (1905).

The statute does not forbid an oral contract to assume the debt of another who is thereupon discharged of all liability to the creditor, the promisor becoming sole debtor in his stead. Jenkins v. Holley, 140 N.C. 379, 53 S.E. 237 (1906).

What Determines Nature of Promise as Original or Collateral. - Whether a promise is an original one not coming within the provisions of this section, or a superadded one barred by the statute, does not depend altogether on the form of expression, but the situation of the parties, and whether they understood the promise to be direct or collateral, should also be considered. Dozier v. Wood, 208 N.C. 414, 181 S.E. 336 (1935).

Whether a promise is an original one not coming within the statute of frauds, or a collateral one required by this section to be in writing, is to be determined from (1) the circumstances of its making, (2) the situation of the parties, and (3) the objects sought to be accomplished. Goldsmith v. Erwin, 183 F.2d 432 (4th Cir. 1950); Burlington Indus., Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974).

The question always is what the parties mutually understood by the language, whether they understood it to be collateral or a direct promise. Davis v. Patrick, 141 U.S. 479, 12 S. Ct. 58, 35 L. Ed. 826 (1891).

A promise is an original promise not coming within the statute of frauds if the extension of credit is made to the promisor or if the contract is made for the benefit of the promisor; but if the contract is made with the third person and the promise constitutes a separate and independent contract under which the promisor agrees to pay upon default of the primary debtor, the promise is a collateral agreement and comes within the statute. Balentine v. Gill, 218 N.C. 496, 11 S.E.2d 456 (1940).

Where there is no benefit to the one promising to answer for the debt of another, and the promise does not create an original obligation, but is a collateral promise, merely superadded to the promise of another, the original promisor remaining liable, the collateral promisor is not liable unless there is a writing, whether the promise is made when the debt is created or not. Sheppard v. Newton, 139 N.C. 533, 52 S.E. 143 (1905).

Where the promisor says to the creditor, "collect from him (the debtor) and if he fails to pay, I will," the undertaking is a collateral one, and not enforceable unless in writing. Garrett Co. v. Hamill, 131 N.C. 57, 42 S.E. 448 (1902).

A promise made at the time or before the debt is created, and where credit is given solely to the promisor, or a promise based on a new consideration between the promisor and the creditor, or a promise for the benefit of the promisor where he has a personal and pecuniary interest in the transaction in which a third party is the original obligor, has been held to be an original promise. Whitehurst v. Padgett, 157 N.C. 424, 73 S.E. 240 (1911); Warren v. White, 251 N.C. 729, 112 S.E.2d 522 (1960).

Similarly, a direct and unconditional promise by one to pay for goods furnished to a third party, made prior to the delivery of the goods, upon the faith of which the goods are delivered is an original undertaking. Morrison v. Baker, 81 N.C. 76 (1879); Garrett Co. v. Hamill, 131 N.C. 57, 42 S.E. 448 (1902).

In Hanes Funeral Home v. Spencer, 214 N.C. 702, 200 S.E. 397 (1938), evidence was held ample to support finding that undertaking by defendant's ward to pay expenses for the funeral of the wife of a close friend was an original promise not coming within the purview of this section.

The main purpose rule is applicable when a court has determined that the promisor's answering for the debt or default of another is merely incidental to his broader purposes. He is participating in the principal contract and making its obligation his own. The expected advantage to the promisor must be such as to justify the conclusion that his main purpose in making the promise is to advance his own interests. Burlington Indus., Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974); Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702 (1980).

The benefit to be derived from one's ownership of stock or holding the position of an officer or director is too indirect or remote to invoke the application of the main purpose rule. Something more - some other expected benefit or advantage to be gained by making the promise - is required to make the "main purpose rule" applicable. Burlington Indus., Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974).

Whether a promise is an original one not coming within the North Carolina Statute of Frauds, G.S. 22-1, or a collateral one required by the statute to be in writing, is to be determined from the circumstances of its making, the situation of the parties, and the objects to be accomplished; where the intent is doubtful, the solution usually lies in summoning the aid of a jury, but if there is insufficient evidence as a matter of law to bring the main purpose rule into play, the case should not be allowed to go to the jury under the theory of the main purpose rule. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87 (2003).

Main Purpose Rule - Under the main purpose rule, or the leading object rule, North Carolina has long recognized that a promise to pay the debt of another is outside the North Carolina Statute of Frauds, G.S. 22-1, and is enforceable if the promise is supported by an independent and sufficient consideration running to the promisor; generally, if it is concluded that the promisor had the requisite personal, immediate, and pecuniary interest in the transaction in which a third party is the primary obligor, then the promise is said to be original rather than collateral and therefore need not be in writing to be binding. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87 (2003).

The "main purpose rule" applies only when the promisor has a direct pecuniary interest in the transaction in which a third party is the primary obligor. Harvey v. Norfolk S. Ry., 60 N.C. App. 554, 299 S.E.2d 664 (1983).

Promise to Guarantee a Promissory Note. - Creditor's complaint stated a claim upon which relief could be granted because, pursuant to the main purpose rule, the personal representative had promised to guarantee a promissory note and thus it was not within the statute of frauds. Terrell v. Kaplan, 170 N.C. App. 667, 613 S.E.2d 526 (2005).

How Intent of Promisor Determined. - The intent of the promisor to become bound may be shown by the surrounding circumstances and other transactions or written communications between the creditor and the promisor. Hickory Novelty Co. v. Andrews, 188 N.C. 59, 123 S.E. 314 (1924).

Anything which shows the intention or the actual contract of the parties is material, and any evidence which goes to show the real intention of the parties is admissible whether it be by way of conduct or documentary in nature in order to determine whether a promise is an original one not coming within the provisions of this section, or a superadded one barred by this section. Goldsmith v. Erwin, 183 F.2d 432 (4th Cir. 1950).

Effect of New Consideration. - Where the party promising to pay a debt receives a new and original consideration from the debtor for his promise, this section does not apply. Daniels v. Duck Island, Inc., 212 N.C. 90, 193 S.E. 7 (1937). See Cooper v. Chambers, 15 N.C. 261 (1833); Mason v. Wilson, 84 N.C. 51 (1881); Whitehurst v. Hyman, 90 N.C. 487 (1884); Hasty Mercantile Co. v. Bryant, 186 N.C. 551, 120 S.E. 200 (1923); Taylor v. Lee, 187 N.C. 393, 121 S.E. 659 (1924); Hickory Novelty Co. v. Andrews, 188 N.C. 59, 123 S.E. 314 (1924). And this is true even where the benefit of the consideration for the promise accrues to a person other than the promisor. Gainesville & Alachua Hosp. Ass'n v. Hobbs, 153 N.C. 188, 69 S.E. 79 (1910). But see Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973); 284 N.C. 616, 201 S.E.2d 689 (1974), where it is said that a new consideration does not take the promise out of the operation of the statute.

The mere fact that there may be a new consideration for the oral promise of a defendant to pay the subsisting debt of another is not sufficient of itself to take the promise out of the prohibition of the statute of frauds. To say that any consideration will take a promise based thereon out of the statute is to make the statute useless. For if there is no consideration the promise is invalid without the statute. The statute is aimed at what were valid contracts; that is to say, it makes invalid, contracts not in writing which would otherwise have been valid. Myers v. Allsbrook, 229 N.C. 786, 51 S.E.2d 629 (1949).

Statement of Consideration Need Not Be Written. - Under this section, the consideration for a promise to answer need not be contained in the writing. Green v. Thornton, 49 N.C. 230 (1856); Standard Supply Co. v. Person, 154 N.C. 456, 70 S.E. 745 (1911).

Paper Writing Not Supporting Action. - A paper writing signed by defendant stated that he owed a certain sum to a named person and contained the words "I agree to Ed Deaton [plaintiff] $1000 of this amount when I pay off." It was held that the paper writing was incomplete and uncertain in meaning and was not a written special promise to answer the debt of another so as to enable plaintiff to maintain an action on it. Deaton v. Coble, 245 N.C. 190, 95 S.E.2d 569 (1956).

Facts Showing Promise Within Statute. - Where a check given by an automobile retailer to plaintiff in payment for a car was returned unpaid, where defendant, who was the debtor's brother, and who was handling the business during debtor's illness, told plaintiff to redeposit the check in about two weeks and that if it were not then paid by the bank he would send plaintiff a cashier's check for part and a personal check for the balance, and where it was alleged that after the debtor's death the defendant and two others purchased the business, but it was not alleged that at the time of the promise defendant contemplated purchasing the business or any interest therein, it was held that while the evidence was sufficient to justify a finding that defendant personally promised to pay the check if his brother's funds were insufficient, and plaintiff's forbearance to take any action on the check for a period of two weeks was sufficient consideration for the promise, there was no allegation that the defendant made the promise to obtain any personal advantage from such forbearance, and therefore the promise came within the statute of frauds, and defendant's motion to nonsuit was properly allowed. Myers v. Allsbrook, 229 N.C. 786, 51 S.E.2d 629 (1949).

Question for Jury as to Whether Original Promise Covered Second Transaction. - Where evidence tended to show that defendants ordered two or three cars of lumber, both defendants being present and promising to be personally responsible therefor, and after the first car was shipped, one of defendants went to plaintiff and told him to ship another car under the same arrangements, it was sufficient to be submitted to the jury on the question whether the original promise of both defendants, made when both were present, covered the second car as well as the first. Brown v. Benton, 209 N.C. 285, 183 S.E. 292 (1935).

B. ILLUSTRATIVE CASES.

.

A promise to pay a decedent's debts must be in writing when such debts are generally charged to the decedent's estate. Parrish Funeral Home v. Pittman, 104 N.C. App. 268, 409 S.E.2d 327 (1991).

Promise to Pay Funeral Expenses. - Defendant's alleged promise to pay funeral expenses for his deceased father if the estate did not was a promise to pay the debt of another, which is void by law unless in writing. Parrish Funeral Home v. Pittman, 104 N.C. App. 268, 409 S.E.2d 327 (1991), holding, however, that as defendants did not specifically plead the statute of frauds, it was not available as a defense.

Promise to Pay Out of Money Placed in Hands of Promisor by Debtor. - While the statute of frauds does not apply to an oral promise to pay the debt of another out of money or property which the debtor has placed in the hands of the promisor for the purpose of paying the debt, evidence tending to show that the debtor entrusted certain funds to the promisor for the purpose of carrying on the debtor's business, without evidence that he entrusted the funds for the specific purpose of paying debtor's debts, is insufficient to bring the promise within this rule. Myers v. Allsbrook, 229 N.C. 786, 51 S.E.2d 629 (1949).

Where purchaser orally agrees in consideration of conveyance to him of property to pay certain debts of his vendor due to a third person, the promise is original and not within the statute. Rice v. Carter, 33 N.C. 298 (1850); Stanly v. Hendricks, 35 N.C. 86 (1851).

Parol Assumption of Mortgage Debt. - A promise by a grantee of mortgaged land to assume and pay the amount of the mortgage is not a promise to pay the debt of another required by this section to be in writing, but is a direct obligation of the grantee supported by sufficient consideration. Parlier v. Miller, 186 N.C. 501, 119 S.E. 898 (1923).

Agreement to Prevent Sale of Land. - An agreement in consideration of the extension of an option that the defendant will pay a certain mortgage note owned by the plaintiff or otherwise prevent the sale of the land is not a promise to answer for the debt, etc., of another, within this section. Whedbee v. Ruffin, 189 N.C. 257, 126 S.E. 616 (1925).

Promise to Guarantee Safety of Money. - An oral promise to guarantee the safety of money placed in the promisor's hands for investment is not an agreement to answer for the debt of another within the meaning of this section. Partin v. Prince, 159 N.C. 553, 75 S.E. 1080 (1912).

The obligation of one as guarantor of payment must be evidenced and established by a written agreement, or some written note or memorandum signed by him or some person authorized to sign for him. Standard Supply Co. v. Finch, 147 N.C. 106, 60 S.E. 904 (1908); Hickory Novelty Co. v. Andrews, 188 N.C. 59, 123 S.E. 314 (1924).

What Amounts to Contract of Guaranty. - A telegram that the debtor is a reliable person and that any justifiable claims will be taken care of is insufficient to establish a contract of guaranty or a promise to answer for the debt, etc., of another, in the absence of a promise to pay the debt if the debtor does not pay. Fain Grocery Co. v. Early & Daniels Co., 181 N.C. 459, 107 S.E. 497 (1921).

Where a writing or notation is not a continuing guaranty, each order being a separate and independent transaction, the defendant is bound only for the order upon which his guaranty appears. Gennett v. Lyerly, 207 N.C. 201, 176 S.E. 275 (1934).

Goods Furnished to Son on Father's Credit. - If goods are furnished to a son upon the promise and credit of the father, the promise need not be in writing; but if the son was the principal debtor and the father merely a surety, the promise must be in writing. White v. Tripp, 125 N.C. 523, 34 S.E. 686 (1899).

Goods Shipped to Business Run in Father's Name by Son. - Where a business run in the name of J. W. J. was in charge of W. P. J., J. W. J.'s son, and J. W. J. being desirous of having goods shipped to W. P. J. permitted them to be shipped in the name of J. W. J. & Son, saying to plaintiff, "you won't lose anything by it," and a payment on account was made by "J. W. J. & Son," this section was held inapplicable. Noland Co. v. Jones, 211 N.C. 462, 190 S.E. 720 (1937).

A parol promise by owners of building to pay materialmen amount due them by contractor cannot form the basis of a claim of lien by virtue of this section. Roberts & Johnson Lumber Co. v. Horton, 232 N.C. 419, 61 S.E.2d 100 (1950).

Agreement to Pay Balance Due from Contractors by Their Surety. - Plaintiff held assignments covering all funds to become due under a building contract, and was entitled to apply such funds to the extinguishment of claims it held for advancements made to carry on the work. Defendant, surety on the contractors' bond, orally agreed that if allowed to use part of the money received by plaintiff, on a payment under the contract, to pay claims for labor and materials so the construction could be carried on without going outside of the funds derived from the work, it would pay the balance due plaintiff from the contractors. It was held that such agreement was not within this section. National Sur. Co. v. Jackson County Bank, 20 F.2d 644 (4th Cir. 1927); Warren v. White, 251 N.C. 729, 112 S.E.2d 522 (1960).

Contract to Pay for Labor and Materials Furnished on Airplanes. - A cause of action based upon an original contract of a corporation, made for it in its name by its president, to pay for labor and materials furnished on airplanes, was not within the provisions of this section. Piedmont Aviation, Inc. v. S & W Motor Lines, Inc., 262 N.C. 135, 136 S.E.2d 658 (1964).

President and Principal Stockholder Promising Personal Liability. - This section does not apply to representations by the president and principal stockholder of a corporation that he, personally, in addition to the corporation, would be obligated for the payment of the contract price for certain construction work, which representations were the agreement upon which plaintiffs accepted and performed the contract, since such agreement involves an original promise or undertaking on the part of the president at the time credit was extended. May v. Charles C. Haynes Jr. Constr. Co., 252 N.C. 583, 114 S.E.2d 271 (1960).

Agreement of Stockholders to Be Responsible for Merchandise. - Defendants agreed orally to be personally responsible for merchandise shipped to a corporation of which they were the main stockholders and which they later took over. It was held that the agreement was an original promise not coming within the statute of frauds. Brown v. Benton, 209 N.C. 285, 183 S.E. 292 (1935).

A promise by the president of a bank to become personally liable for a deposit when supported by a new and independent consideration constituted an original undertaking by him, and the agreement did not come within the provisions of this section. Dillard v. Walker, 204 N.C. 16, 167 S.E. 636 (1933).

The guaranty of payment of a deposit made by the vice-president, director and stockholder of the bank was an original promise to answer for the debt, upon sufficient consideration, and did not come within the provisions of this section, and upon the insolvency of the bank and loss to the depositor, the plea of the statute of frauds was not a valid defense. Garren v. Youngblood, 207 N.C. 86, 176 S.E. 252 (1934).

The president and treasurer of a corporation who has no personal, immediate and pecuniary benefit in the purchase of materials by the corporation is not an original promisor under this section and may not be held personally liable for the purchase price because of verbal promises to answer for the benefit made in his behalf by the secretary for the corporation as his alleged agent. Gennett v. Lyerly, 207 N.C. 201, 176 S.E. 275 (1934).

An oral guarantee of genuineness or validity of a note and the liability of the maker to pay it, made by the holder upon a transfer of it for value, is not a promise contemplated by this section to be in writing. Adcock v. Fleming, 19 N.C. 225 (1837); Ashford v. Robinson, 30 N.C. 114 (1847); Rowland v. Rorke, 49 N.C. 337 (1857).

Agreement to Furnish Merchandise for Use on Farm. - Evidence on defendant's statements to plaintiff merchant at the time plaintiff agreed to furnish certain merchandise for use on defendant's farm is held susceptible of the interpretation that defendant's promise to pay therefor was an original promise not coming within this section, and not a superadded one barred by the statute, and the question of interpretation should have been submitted to the jury. Dozier v. Wood, 208 N.C. 414, 181 S.E. 336 (1935).

Promise to Save Landlord Releasing Lien from Harm on Appeal Bond. - One financially interested in a crop induced the landlord to part with his lien, in order that the tenant might retain possession, and to sign an appeal bond of the tenant, and promised to save the landlord from harm thereon. The landlord was required to pay the bond. It was held that the release of the landlord's lien was sufficient consideration for the promise to save from harm, and the transaction was not within this section. Jennings v. Keel, 196 N.C. 675, 146 S.E. 716 (1929).

Persons who sign a note with the original makers, the note being complete except for the insertion of the name of the payee, may not contend that their obligation was to answer on a special promise for the debt of another within the protection of the statute of frauds, since the writing is a sufficient memorandum within the purview of this section. Jones v. Jones, 268 N.C. 701, 151 S.E.2d 587 (1966).

A letter written by defendant as president of a corporation would be insufficient to constitute a definite promise to answer for the debt of another within the meaning of this section where the letter does not establish what amount the defendant would pay plaintiff, the date payment would be made, or the event that would determine when payment would be due. Marvel Lamp Co. v. Capel, 45 N.C. App. 105, 262 S.E.2d 368, cert. denied, 300 N.C. 197, 269 S.E.2d 617 (1980).

Promises by Stockholders, Officers, or Directors to Pay Debt of Corporation. - When the "main purpose rule" is applied to promises by stockholders, officers, or directors, to pay a debt of the corporation, it may be said that the promise is original where the promisor's primary object was to secure some direct and personal benefit from the performance by the promisee of his contract with the corporation, or from the latter's refraining from exercising against the corporation some right existing in him by virtue of the contract. Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702 (1980).

The benefit to the promisor is to be distinguished from the indirect benefit which would accrue to him merely by virtue of his position as a stockholder, officer, or director. If the benefit accruing is direct and personal, then the promise is original within the rule above discussed, and the validity thereof is not affected by the statute of frauds. Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702 (1980).

In an action upon an oral guaranty agreement, only indirect benefit accumulated to the guarantor, the corporation debtor's operating officer and a stockholder; she did not have the required direct interest in the company's transactions to invoke application of the "main purpose" doctrine and take the agreement out of the statute of frauds. Tyson Foods, Inc. v. Ammons, 75 N.C. App. 548, 331 S.E.2d 208 (1985).

Plaintiff's claim that a director of an insolvent corporation was liable for the corporation's debt did not survive summary judgment; even assuming that the director promised plaintiff to assume such liability, as this alleged guaranty agreement was not in writing, it was unenforceable under G.S. 22-1. United States Trouser, S.A. de C.V. v. Int'l Legwear Group, Inc., - F. Supp. 2d - (W.D.N.C. Dec. 13, 2012).

Promise of a corporate chairman who was the main stockholder in a school to stand good for the debt of the school to be incurred for the printing of catalogues was not in writing and was within the statute of frauds, but since the art studio which had contracted in its name for the printing offered evidence to invoke the application of the "main purpose rule," which is a well-known exception to the rule requiring that such promises be evidenced by a written memorandum, the question should have gone to the jury. Stuart Studio, Inc. v. National School of Heavy Equip., Inc., 25 N.C. App. 544, 214 S.E.2d 192 (1975).

Promise of Member to Guarantee Debt of LLC. - Reference in an addendum to a loan made to a limited liability company that a debtor was personally guaranteeing the LLC's obligation did not satisfy the requirement in G.S. 22-1 that such a guaranty be evidenced by a writing, and the debtor's objection to the lender's claim on a purported guaranty was properly sustained. In re Sisler, - Bankr. - (Bankr. E.D.N.C. Nov. 16, 2011).

Agreement to Assume Indebtedness for Equipment Installed in Restaurant. - An agreement whereby the purchaser of a restaurant assumed the original owner's indebtedness for equipment installed in the restaurant, and the seller of the equipment released the original owner from liability, was neither a promise to answer for the debt of another nor a contract for the sale of goods for $500 or more, and the statute of frauds did not apply. Thompson & Little, Inc. v. Colvin, 46 N.C. App. 774, 266 S.E.2d 46 (1980).

Testimony of Promise to Pay Former Wife's Debt to Plaintiff Allowed. - Trial court did not err in allowing testimony of oral communications concerning defendant's promise to pay former wife's debt to plaintiff; defendant's promise constituted an original promise, and therefore was not subject to the writing requirement where defendant promised plaintiff that he would make all of the monthly payments on the mortgage note; furthermore, he made the agreement directly with plaintiff, rather than solely with former wife to pay off her debt to her mother, and defendant's promise to plaintiff was supported by independent consideration; namely, plaintiff pledged her own residence as collateral and obtained for defendant a $25,000 loan. Effler v. Pyles, 94 N.C. App. 349, 380 S.E.2d 149 (1989).

Genuine Issues of Material Fact Found - Trial court erred in granting the owners' summary judgment motion as to an oral guaranty because there were genuine issues of material fact as to whether an oral guaranty was given and whether the main purpose rule was applicable, which would take the agreement out of the North Carolina Statute of Frauds, G.S. 22-1. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87 (2003).

§ 22-2. Contract for sale of land; leases.

All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.

History

(29 Charles II, c. 3, ss. 1, 2, 3; 1819, c. 1016, P.R.; 1844, c. 44; R.C., c. 50, s. 11; 1868, c. 156, ss. 2, 33; Code, ss. 1554, 1743; Rev., s. 976; C.S., s. 988.)

Cross References. - As to transfers of registered land, see G.S. 43-38.

As to conveyances, contracts to convey options and leases of land, see G.S. 47-18.

Legal Periodicals. - For discussion of effect of this section upon mortgage deeds absolute in form, see 26 N.C.L. Rev. 405 (1948).

For note on recovery of payments by vendee under contract void under statute of frauds, see 30 N.C.L. Rev. 292 (1952).

For note on rights of lessees under oral leases, see 31 N.C.L. Rev. 498 (1953).

For comment on parol boundary settlements, see 40 N.C.L. Rev. 304 (1962).

For note on recovery by third party beneficiary on quantum meruit, see 41 N.C.L. Rev. 890 (1963).

For article on options to purchase real property in North Carolina, see 44 N.C.L. Rev. 63 (1965).

For article concerning the quest for clear land titles in North Carolina, see 44 N.C.L. Rev. 89 (1965).

For note on the sufficiency of a will as a memorandum for purposes of the statute of frauds, see 54 N.C.L. Rev. 976 (1976).

For article, "Future Advances and Title Insurance Coverage," see 15 Wake Forest L. Rev. 329 (1979).

For comment on the seal in North Carolina and the need for reform, see 15 Wake Forest L. Rev. 251 (1979).

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

For note on waiver of closing date in land sales contracts in North Carolina, in light of Fletcher v. Jones, 314 N.C. 389, 333 S.E.2d 731 (1985), see 8 Campbell L. Rev. 546 (1986).

For article, "Private Land Use Controls: Enforcement Problems with Real Covenants and Equitable Servitudes in North Carolina," see 22 Wake Forest L. Rev. 749 (1987).

For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

For article, "Automatic Stays and Administrative Expenses: Rights and Remedies Available to Landlords and Tenants in Bankruptcy Proceedings," see 31 Campbell L. Rev. 413 (2009).

As to recovery on quantum meruit for services rendered pursuant to oral contract to devise, see 26 N.C.L. Rev. 417.

CASE NOTES

• I. In General.
• II. What Constitutes an Interest in or Concerning Land.
• III. Sufficiency of Compliance with Section.
  • A. In General.
  • B. The Signature.
  • C. Statement of Consideration.
• IV. Part Performance.
• V. Pleading and Practice.

I. IN GENERAL.

Purpose of Section Is to Prevent Fraud. - Contracts within the meaning of this section were required to be in writing, to prevent frauds and perjuries. Winberry v. Koonce, 83 N.C. 351 (1880).

This section will not prevent an unwritten promise from being the basis for an action to cancel a deed where the promise was merely a device to accomplish fraud, and the relief sought is not to enforce the promise or to recover damages for its breach. Mitchell v. Mitchell, 206 N.C. 546, 174 S.E. 447 (1934).

A suitor will not be permitted to make use of the statute of frauds, not to prevent a fraud upon himself, but to commit a fraud upon his adversary. Johnson v. Noles, 224 N.C. 542, 31 S.E.2d 637 (1945).

The statute of frauds was designed to guard against fraudulent claims supported by perjured testimony; it was not meant to be used by defendants to evade an obligation based on a contract fairly and admittedly made. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Construction of Section. - This section has not been given a literal or narrow construction. The decisions of the Supreme Court have consistently given that interpretation which would accomplish the purpose declared in the English statute. Even though the statute declares leases and conveyances void, that word has been regularly interpreted to mean voidable. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

This section goes to the substance as well as the remedy. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

Terms of Escrow Agreement Must Comply With Statute of Frauds. - Buyers of property who had used escrow funds to pay for repairs to a swimming pool were not entitled to recover additional funds from the sellers because the parties' contract clearly provided that the escrow fund would be used to pay for such repairs and did not call for additional payments; because the agreement concerned the parties' interests in the pool and thus in the house and land that were conveyed, any terms of the parties' agreement had to have been set down in writing to be valid under the statute of frauds, G.S. 22-2. Ingersoll v. Smith, 184 N.C. App. 753, 647 S.E.2d 141 (2007).

Section Supplemented by G.S. 47-18. - This section and the Connor Act, G.S. 47-18, requiring registration of deeds and leases, were designed to accomplish the same purpose. The latter act supplements the earlier act. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

Who May Plead Statute. - Any person, plaintiff or defendant, against whom enforcement is sought may plead the statute of frauds against a contract voidable under the statute of frauds. Davis v. Lovick, 226 N.C. 252, 37 S.E.2d 680 (1946), overruled on other grounds in Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

This section applies to executory and not executed contracts. Choat v. Wright, 13 N.C. 289 (1830); Bailey v. Bishop, 152 N.C. 383, 67 S.E. 968 (1910); Rogers v. Gennett Lumber Co., 154 N.C. 108, 69 S.E. 788 (1910); Herndon v. Durham & S.R.R., 161 N.C. 650, 77 S.E. 683 (1913); Keith Bros. v. Kennedy, 194 N.C. 784, 140 S.E. 721 (1927); Willis v. Willis, 242 N.C. 597, 89 S.E.2d 152 (1955); Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958). See Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171 (1951); Dobias v. White, 240 N.C. 680, 83 S.E.2d 785 (1954); Hayman v. Stafford, 77 N.C. App. 154, 334 S.E.2d 438 (1985).

Where a contract was for the sale of an automobile in consideration of the conveyance of certain realty, and the vendor executed a good and sufficient deed, it was held that the contract was executed as to the conveyance of lands under this section. Keith Bros. v. Kennedy, 194 N.C. 784, 140 S.E. 721 (1927).

A deed is a contract which must meet the requirements of the statute of frauds. Overton v. Boyce, 26 N.C. App. 680, 217 S.E.2d 704 (1975), rev'd on other grounds, 289 N.C. 291, 221 S.E.2d 347 (1976).

A wholly unexecuted parol contract to sell land is void. Riggs v. Anderson, 260 N.C. 221, 132 S.E.2d 312 (1963).

Parol Trusts Are Valid Generally. - The seventh section of the English statute of frauds, forbidding the creation of parol trusts unless manifested and proved by some writing, is not in force in North Carolina and no statute of equivalent import has been enacted. Hence, parol trusts have a recognized place in this State's jurisprudence and have been sanctioned and upheld. Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028 (1909); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913); Wilson v. Jones, 176 N.C. 205, 97 S.E. 18 (1918); Kelly Springfield Tire Co. v. Lester, 192 N.C. 642, 135 S.E. 778 (1926); Winner v. Winner, 222 N.C. 414, 23 S.E.2d 251 (1942). See also Pittman v. Pittman, 107 N.C. 159, 12 S.E. 61 (1890); Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241 (1895); Anderson v. Harrington, 163 N.C. 140, 79 S.E. 426 (1913); Lutz v. Hoyle, 167 N.C. 632, 83 S.E. 749 (1914); Robertson v. Bemis & Vosburgh, 226 F. 828 (E.D.N.C. 1915); Newby v. Atlantic Coast Realty Co., 182 N.C. 34, 108 S.E. 323 (1921); Blue v. Wilmington, 186 N.C. 321, 119 S.E. 741 (1923); Cunningham v. Long, 186 N.C. 526, 120 S.E. 81 (1923); Peele v. LeRoy, 222 N.C. 123, 22 S.E.2d 244 (1942); Taylor v. Addington, 222 N.C. 393, 23 S.E.2d 318 (1942); Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944); Embler v. Embler, 224 N.C. 811, 32 S.E.2d 419 (1945); Atkinson v. Atkinson, 225 N.C. 120, 33 S.E.2d 666 (1945); Carlisle v. Carlisle, 225 N.C. 462, 35 S.E.2d 418 (1945).

Parol trusts have been held valid in the following cases involving, generally, trusts in land for the benefit of others than the grantor: Hargrave v. King, 40 N.C. 430 (1848) (dictum); Cloninger v. Summit, 55 N.C. 513 (1856); Cousins v. Wall, 56 N.C. 43 (1856); Hanff v. Howard, 56 N.C. 440 (1857); Shelton v. Shelton, 58 N.C. 292 (1859); Cohn v. Chapman, 62 N.C. 92 (1867); Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241 (1895); Owens v. Williams, 130 N.C. 165, 41 S.E. 93 (1902); Sykes v. Boone, 132 N.C. 199, 43 S.E. 645 (1903); Avery v. Stewart, 136 N.C. 426, 48 S.E. 775 (1904); Anderson v. Harrington, 163 N.C. 140, 79 S.E. 426 (1913); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913); Lutz v. Hoyle, 167 N.C. 632, 83 S.E. 749 (1914); Rush v. McPherson, 176 N.C. 562, 97 S.E. 613 (1918); Cunningham v. Long, 186 N.C. 526, 120 S.E. 81 (1923); Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944); Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619 (1945); Carlisle v. Carlisle, 225 N.C. 462, 35 S.E.2d 418 (1945); and in these cases involving, generally, division of profits arising from the disposition of land: Michael v. Foil, 100 N.C. 178, 6 S.E. 264 (1888); Hunt v. Hunt, 261 N.C. 437, 135 S.E.2d 195 (1964); Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965); Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760 (1944); Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652 (1945); Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948); Shepherd v. Duke Power Co., 140 F. Supp. 27 (M.D.N.C. 1956).

This section has no application to parol trusts. Hargrave v. King, 40 N.C. 430 (1848); Cloninger v. Summit, 55 N.C. 513 (1856); Cousins v. Wall, 56 N.C. 43 (1856); Hanff v. Howard, 56 N.C. 440 (1857); Riggs v. Swann, 59 N.C. 118 (1860); Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241 (1895); Owens v. Williams, 130 N.C. 165, 41 S.E. 93 (1902); Sykes v. Boone, 132 N.C. 199, 43 S.E. 645 (1903); Avery v. Stewart, 136 N.C. 426, 48 S.E. 775 (1904); Russell v. Wade, 146 N.C. 116, 59 S.E. 345 (1907); Anderson v. Harrington, 163 N.C. 140, 79 S.E. 426 (1913); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913); Brogden v. Gibson, 165 N.C. 16, 80 S.E. 966 (1914); Lutz v. Hoyle, 167 N.C. 632, 83 S.E. 749 (1914); Boone v. Lee, 175 N.C. 383, 95 S.E. 657 (1918); Newby v. Atlantic Coast Realty Co., 182 N.C. 34, 108 S.E. 323 (1921); Peele v. LeRoy, 222 N.C. 123, 22 S.E.2d 244 (1942); Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944); Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619 (1945). See, for example, the language of Pearson, C.J., in Shelton v. Shelton, 58 N.C. 292 (1859), quoted with approval in, 311 N.C. 755, 321 S.E.2d 133 (1984), and Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948).

State courts have tried to avoid the sometimes harsh results that a strict application of the statute of frauds would bring to unknowing and uneducated persons. It has been avoided on occasion by the application of a parol trust. Britt v. Allen, 21 N.C. App. 497, 204 S.E.2d 903 (1974).

Nor does this section prohibit the establishment by parol evidence. Shelton v. Shelton, 58 N.C. 292 (1859); Riggs v. Swann, 59 N.C. 118 (1860); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913); Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944). And in Thompson v. Davis it is further stated (223 N.C. at p. 794): "Parol evidence introduced to establish such a trust does not violate the rule of evidence prohibiting the admission of parol evidence to contradict, alter or explain a written instrument, since such is not its purpose or effect." But the evidence must be clear, strong and convincing. Jefferson Standard Life Ins. Co. v. Morehead, 209 N.C. 174, 183 S.E. 606 (1935).

Thus, parol trusts remain as at common law. Shelton v. Shelton, 58 N.C. 292 (1859); Pittman v. Pittman, 107 N.C. 159, 12 S.E. 61 (1890); Anderson v. Harrington, 163 N.C. 140, 79 S.E. 426 (1913); Lutz v. Hoyle, 167 N.C. 632, 83 S.E. 749 (1914); Cunningham v. Long, 186 N.C. 526, 120 S.E. 81 (1923); Peele v. LeRoy, 222 N.C. 123, 22 S.E.2d 244 (1942).

But Must Be Declared Prior to or Contemporaneously with Transfer of Legal Title. Owens v. Williams, 130 N.C. 165, 41 S.E. 93 (1902) (prior parol declaration and land conveyed pursuant thereto); Sykes v. Boone, 132 N.C. 199, 43 S.E. 645 (1903); Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616 (1985); Howard-Green Elec. Co. v. Chaney & James Constr. Co., 12 N.C. App. 63, 182 S.E.2d 601 (1971).

A declaration is said to be contemporaneous, in the sense that it is a part of the same transaction in which the sale is accomplished. Kelly v. McNeill, 118 N.C. 349, 24 S.E. 738 (1896).

For cases stating only that the declaration must be contemporaneous, see Riggs v. Swann, 59 N.C. 118 (1860) ("at the time the legal title passes"); Pittman v. Pittman, 107 N.C. 159, 12 S.E. 61 (1890); Blackburn v. Blackburn, 109 N.C. 488, 13 S.E. 937 (1891); Hamilton v. Buchanan, 112 N.C. 463, 17 S.E. 159 (1893) ("at the time of the sale"); Peele v. LeRoy, 222 N.C. 123, 22 S.E.2d 244 (1942). But see Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241 (1895), and Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619 (1945).

If declared subsequent to the transmission of title, parol trusts will not be upheld. Smiley v. Pearce, 98 N.C. 185, 3 S.E. 631 (1887); Pittman v. Pittman, 107 N.C. 159, 12 S.E. 61 (1890); Blount v. Washington, 108 N.C. 230, 12 S.E. 1008 (1891); Hamilton v. Buchanan, 112 N.C. 463, 17 S.E. 159 (1893) (invalid under statute of frauds); Cobb v. Edwards, 117 N.C. 244, 23 S.E. 241 (1895); Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619 (1945); Loftin v. Kornegay, 225 N.C. 490, 35 S.E.2d 607 (1945) (void under statute of frauds). It was said in Kelly v. McNeill, 118 N.C. 349, 24 S.E. 738 (1896), "Subsequent agreements by parol are void, under the statute of frauds, whether made the next moment or the next year."

After title to real property has passed, any oral agreement to engraft a trust thereon falls within the statute of frauds, and no action for a breach thereof can be maintained. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524 (1957).

Moreover, Parol Trust in Favor of Grantor Is Invalid. - Upon the creation of parol trusts, the authorities seem to have declared or established the limitation that except in cases of fraud, mistake or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on the face of the instrument that such a title was intended to pass. Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028 (1909); Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913); Colonial Trust Co. v. Sterchie Bros., 169 N.C. 21, 85 S.E. 40 (1915); Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116 (1915); Walters v. Walters, 171 N.C. 312, 88 S.E. 438 (1916); Walters v. Walters, 172 N.C. 328, 90 S.E. 304 (1916); Chilton v. Smith, 180 N.C. 472, 105 S.E. 1 (1920); Swain v. Goodman, 183 N.C. 531, 112 S.E. 36 (1922); Blue v. Wilmington, 186 N.C. 321, 119 S.E. 741 (1923); Williams v. McRackan, 186 N.C. 381, 119 S.E. 746 (1923) (concurring opinion by Clark, C.J., referring to Gaylord v. Gaylord, supra, as "well reasoned and clearly enunciated and . . . recognized as a leading case . . ."); Kelly Springfield Tire Co. v. Lester, 192 N.C. 642, 135 S.E. 778 (1926); Wilson v. Crab Orchard Dev. Co., 276 N.C. 198, 171 S.E.2d 873 (1970); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50 (1969); 276 N.C. 198, 171 S.E.2d 873 (1970); Estridge v. Denson, 270 N.C. 556, 155 S.E.2d 190 (1967); Estridge v. Denson, 270 N.C. 556, 155 S.E.2d 190 (1967); Estridge v. Denson, 270 N.C. 556, 155 S.E.2d 190 (1967); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50 (1969); 276 N.C. 198, 171 S.E.2d 873 (1970); Pritchard v. Mitchell, 139 N.C. 54, 51 S.E. 783 (1905); Cooper v. McKinnon, 122 N.C. 447, 29 S.E. 417 (1898).

Parol trusts will not be permitted or established by reason of contemporaneous parol contracts and agreements between the parties when the same are in direct conflict with the expressed stipulations of the written deed and the entire purport of the instrument. In such case and to that extent the doctrine of parol trusts is subordinated to another well-recognized principle of law, that when parties have formally and explicitly expressed their entire contract in writing, the same shall not be contradicted or changed by contemporaneous stipulations and agreements resting in parol. Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028 (1909). See also, 35 A.L.R. 285 and 33 N.C.L. Rev. 227 (1955).

It was no doubt in deference to the principle that a parol trust will not be set up in favor of the grantor upon a written deed conveying to the grantee the absolute title, that a verdict was rendered in favor of defendant grantee in the instant case, where the issue was addressed to the interest alleged in favor of the grantor in the deed; but as to those who were not directly parties to the instrument it is well established that a parol trust of this kind may be established by parol declarations contemporary with the making of the deed or prior thereto and existent at the time the same was executed and title passed. Jones v. Jones, 164 N.C. 320, 80 S.E. 430 (1913).

The qualification that a parol trust cannot be established in favor of the grantor without an allegation of fraud or mistake stands upon a different footing and has no application to the facts in the instant case in which the trust was not sought to be established and enforced by the grantor, but by others not parties to the deed. Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556 (1944).

If, notwithstanding the solemn recitals and covenants in a deed, the grantor could show a parol trust in himself it would virtually do away with the statute of frauds and would be a most prolific source of fraud and litigation. Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116 (1915).

A parol trust cannot be established between the parties in favor of the grantor in a deed, when the effect will be to contradict or change by a contemporaneous oral agreement the written contract clearly and fully expressed. To permit the terms of a solemn conveyance, absolute on its face, to be contradicted by a contemporaneous parol agreement would be in the teeth of the letter and the intent of the statute of frauds. Chilton v. Smith, 180 N.C. 472, 105 S.E. 1 (1920).

Parol trusts were not raised in favor of the grantor in the following cases involving, generally, parol agreements between grantor and grantee by which the grantee was to reconvey: Campbell v. Campbell, 55 N.C. 364 (1856) (agreement void under the statute of frauds); Bonham v. Craig, 80 N.C. 224 (1879); Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116 (1915); Newton v. Clark, 174 N.C. 393, 93 S.E. 951 (1917); Chilton v. Smith, 180 N.C. 472, 105 S.E. 1 (1920); Swain v. Goodman, 183 N.C. 531, 112 S.E. 36 (1922) (parol promise in contravention of statute of frauds); Wolfe v. North Carolina Joint Stock Land Bank, 219 N.C. 313, 13 S.E.2d 533 (1941); Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301; Powell Bros. v. McMullan Lumber Co., 153 N.C. 52, 68 S.E. 926 (1910); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50 (1969); 276 N.C. 198, 171 S.E.2d 873 (1970); Pritchard v. Mitchell, 139 N.C. 54, 51 S.E. 783 (1905); Cooper v. McKinnon, 122 N.C. 447, 29 S.E. 417 (1898).

Except in cases of fraud, mistake or undue influence, parol trusts or agreements will not be set up or engrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear indication on its face that such title was intended to pass. Rourk v. Brunswick County, 46 N.C. App. 795, 266 S.E.2d 401 (1980).

Parol trust device is used to prevent a party from retaining property unfairly after purchasing it as the agent for another party. Britt v. Allen, 27 N.C. App. 122, 218 S.E.2d 218 (1975), aff'd in part, rev'd in part, 291 N.C. 630, 231 S.E.2d 607 (1977).

Resulting Trusts. - Resulting trusts, which arise by operation of law, do not come within the statute of frauds, and may be proved by parol evidence. Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19 (1939).

The statute of frauds has no application to a resulting trust, arising while plaintiffs furnished the full purchase price for certain lots, defendants took title thereto in their own names and built a dwelling on one of the lots for plaintiffs, for which plaintiffs paid them in full, and thereafter conveyed only part of the lots to plaintiffs. Hoffman v. Mozeley, 247 N.C. 121, 100 S.E.2d 243 (1957).

This section is applicable to option contracts for the purchase of property. Craig v. Kessing, 36 N.C. App. 389, 244 S.E.2d 721 (1978), aff'd, 297 N.C. 32, 253 S.E.2d 264 (1979).

To be specifically enforceable an option-contract must meet the requirements of the statute of frauds. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Statute Is Not Applicable to Abrogation of Contracts. - The statute of frauds applies to the making of enforceable contracts to sell or convey land, not to their abrogation. As a consequence, an executory written contract to sell or convey real property may be abandoned or canceled by mutual agreement orally expressed. Scott v. Jordan, 235 N.C. 244, 69 S.E.2d 557 (1952).

A lease which is required by the statute of frauds to be in writing may be rescinded orally by the mutual assent of both parties. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972), rev'd on other grounds, 283 N.C. 277, 196 S.E.2d 262 (1973).

Nor to Lease for One Year. - A lease for one year need not be in writing. Carolina Helicopter Corp. v. Cutter Realty Co., 263 N.C. 139, 139 S.E.2d 362 (1964).

Applicable to Lease Greater than Three Years. - Where alleged lease was for a term greater than three years this section was applicable. Computer Decisions, Inc. v. Rouse Office Mgt. of N.C. Inc., 124 N.C. App. 383, 477 S.E.2d 262 (1996).

Even though a contract is one which would terminate at the promisee's death, the promisor may waive this feature of the contract and does so where he permits others, associated with the promisee in his lifetime in rendering the performance, to continue after his death and accepts such performance without giving notice within a reasonable time of an intention to consider the obligation as ended. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

Oral Statement of Lessor's Son-in-Law as Modifying Lease. - Where a lease for a term of five years was in writing as required by this section, an oral statement of the lessor's son-in-law forbidding lessee to have anything to do with the furnace, an appurtenance of the demised premises, could not have the effect of modifying the written lease, certainly in the absence of evidence that the son-in-law was an agent of the lessor and had legal authority to agree or assent to a change in the written lease. Rickman Mfg. Co. v. Gable, 246 N.C. 1, 97 S.E.2d 672 (1957).

Alleged oral promise of permanent employment entitling plaintiff to a lifetime lease on the property even though the lease was not in writing is void under this section. Craig v. Texaco, Inc., 218 F. Supp. 789 (E.D.N.C. 1963), aff'd, 326 F.2d 971 (4th Cir. 1964).

A contract for the construction of a house was not required to be in writing. Rankin v. Helms, 244 N.C. 532, 94 S.E.2d 651 (1956).

Written Agreement to Adopt Minor. - Where intestate made a written agreement with parents of a minor to adopt minor and make her his sole heir in consideration of the parents agreeing to the adoption, such agreement, being in writing, did not come within the provisions of this section. Chambers v. Byers, 214 N.C. 373, 199 S.E. 398 (1938).

Parol assurances made by a developer to prospective buyers regarding the general scheme or plans of development that the developer intends to pursue are admissible to establish the existence of such a scheme. Such parol evidence may be in the form of a field map, sales brochures, maps, advertising or oral statements on which purchasers relied. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).

Use of parole evidence to determine area referred to in declaration of covenants. - In determining whether subdivision common area included a certain three-acre parcel, the trial court improperly excluded evidence of statements made by agents to buyers, and should have admitted preliminary plat and landscaping plan as maps tending to identify the common area referred to in the declaration of covenants. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).

Parol Evidence to Establish Contract of Sale. - Under this section, parol evidence is incompetent to establish agreement to pay purchase price, so as to show that contract was one of sale and not an option, since this is an essential element of a contract of sale and purchase, and an essential element of a contract required to be in writing may not be established by parol. Kluttz v. Allison, 214 N.C. 379, 199 S.E. 395 (1938).

Effect of Noncompliance. - The contracts which are not entered into in compliance with this section are not void, but voidable merely at the instance of the party charged. And when such party takes advantage of the provisions of the statute, he repudiates the contract in its entirety and cannot derive any benefit from it. For example a vendee cannot recover the money he has paid the vendor under a parol contract which he has repudiated. Durham Consol. Land & Imp. Co. v. Guthrie, 116 N.C. 381, 21 S.E. 952 (1895). They are enforceable unless the party to be charged takes advantage of the statute. McCall v. Textile Indus. Inst., 189 N.C. 775, 128 S.E. 349 (1925).

The statute of frauds affects not only the enforcement of contracts coming within its terms but also their validity. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948).

Rights of Vendee under Parol Contract. - The vendor, in a parol contract to convey land, will not be permitted to evict a vendee who has entered and made improvements, until the latter has been repaid the purchase money and compensated for betterments. Union Cent. Life Ins. Co. v. Cordon, 208 N.C. 723, 182 S.E. 496 (1935). See also Dupree v. Moore, 227 N.C. 626, 44 S.E.2d 37 (1947).

Purchaser Takes with Notice of Enforceable Parol Lease. - Purchaser of real property takes with notice that the premises may be under parol lease for a term not exceeding three years, but beyond that period he is protected by provision that the lease must have been in writing. Wright v. Allred, 226 N.C. 113, 37 S.E.2d 107 (1946).

An oral agreement of arbitration as to real property cannot be enforced. Fort v. Allen, 110 N.C. 183, 14 S.E. 685 (1892).

Recovery on Quantum Meruit. - A parol contract to devise realty in consideration of personal services is unenforceable under the statute of frauds, but where the services have been rendered in reliance upon the promise to devise, the law substitutes in place of the unenforceable promise a valid promise to pay the reasonable worth of the services, and recovery may be had upon quantum meruit, the mainspring of the statute of frauds being to prevent frauds and not to promote them. Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764 (1947).

Failure to prove a special contract would not preclude plaintiffs from having their case submitted to the jury if their evidence was sufficient to support a recovery based on quantum meruit. Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971).

Quantum meruit claim, which is implied by law rather than agreed to by the parties, is not within the statute of frauds. Moon v. Central Bldrs., Inc., 65 N.C. App. 793, 310 S.E.2d 390 (1984).

Land owned individually by one who entered into a partnership could not become a partnership asset absent some written agreement sufficient to satisfy the statute of frauds, despite G.S. 59-40(c), which recognizes that the title to real property may be in the name of one or more, but not all the partners, and G.S. 59-56, which makes a partner's interest in partnership property, even real property, a personal property interest. Ludwig v. Walter, 75 N.C. App. 584, 331 S.E.2d 177 (1985).

Use of Unenforceable Contract as Evidence in Criminal Trial. - Defendant's G.S. 14-168.1 convictions were supported by substantial evidence of defendant's intent to defraud a victim where: (1) defendant and the victim had an agreement where the victim, the bailor, would give defendant, the bailee, $500 to pay the sellers to obtain ownership of the land; (2) although defendant took the victim's money, he did not use it for its intended purpose of paying the sellers; (3) seller one testified that defendant had not made a payment since July 2008, and the victim testified he had given defendant money in subsequent months; (4) defendant did not support his claim that his intent to defraud could not be based on his contract with the victim because it was unenforceable under G.S. 22-2; and (5) there was no prohibition on using unenforceable contracts to establish substantial evidence to support a conversion charge. State v. Minton, 223 N.C. App. 319, 734 S.E.2d 608 (2012).

Deed Void. - There was no genuine issue of material fact as to the validity of a deed because the deed was void whether due to notarization if the deed was to the notary and her husband or the deed was materially altered after execution without the grantor's knowledge or consent. Quinn v. Quinn, 243 N.C. App. 374, 777 S.E.2d 121 (2015).

Illustrative Cases. - Defendant, claiming that he and his "roommate" of more than 20 years did not have a common law marriage and did not enter into a contract for the purchase of the property where they lived, correctly pled the statute of frauds and was improperly denied his motion for directed verdict. Patterson v. Strickland, 139 N.C. App. 510, 515 S.E.2d 915 (1999).

Plaintiff, alleging that she and her "roommate" of over 20 years had an agreement to jointly purchase the property where they lived was not barred by statute of frauds from recovering under a purchase-money resulting trust claim. Patterson v. Strickland, 139 N.C. App. 510, 515 S.E.2d 915 (1999).

In a developer's breach of contract action regarding the construction and sale of plasma centers to a buyer, a trial court correctly determined the statute of frauds, G.S. 22-2, did not govern the parties' contract because there was no reference in the agreement regarding the assignment of leases and the agreement plainly stated that no rights and duties were created other than those expressly stated in the agreement; the trial court did not err in denying the buyer's motion for judgment notwithstanding the verdict, G.S. 1A-1, N.C. R. Civ. P. 50. Plasma Ctrs. of Am., LLC v. Talecris Plasma Res., Inc., 222 N.C. App. 83, 731 S.E.2d 837 (2012).

Applied in Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22 (1948); Rochlin v. P. S. West Constr. Co., 234 N.C. 443, 67 S.E.2d 464 (1951); Darden v. Houtz, 234 F. Supp. 261 (E.D.N.C. 1964); Henry v. Shore, 18 N.C. App. 463, 197 S.E.2d 270 (1973); Britt v. Allen, 37 N.C. App. 732, 247 S.E.2d 17 (1978); Pierce v. Gaddy, 42 N.C. App. 622, 257 S.E.2d 459 (1979); Stallings v. Purvis, 42 N.C. App. 690, 257 S.E.2d 664 (1979); Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672 (1979); Wright v. Wright, 305 N.C. 345, 289 S.E.2d 347 (1982); Bennett v. Fuller, 67 N.C. App. 466, 313 S.E.2d 597 (1984); Fletcher v. Jones, 69 N.C. App. 431, 317 S.E.2d 411 (1984); Johnson v. Brown, 71 N.C. App. 660, 323 S.E.2d 389 (1984); Carolina Bldrs. Corp. v. Howard-Veasey Homes, Inc., 72 N.C. App. 224, 324 S.E.2d 626 (1985); Britt v. Britt, 320 N.C. 573, 359 S.E.2d 467 (1987); Schafer v. Barrier Island Station, Inc., 946 F.2d 1075 (4th Cir. 1991); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Hanson v. Legasus of N.C. 205 N.C. App. 296, 695 S.E.2d 499 (2010).

Cited in Creech v. Creech, 222 N.C. 656, 24 S.E.2d 642 (1943); Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729 (1944); Williams v. Joines, 228 N.C. 141, 44 S.E.2d 738 (1947); Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953); Clark v. Butts, 240 N.C. 709, 83 S.E.2d 885 (1954); Douglass v. Brooks, 242 N.C. 178, 87 S.E.2d 258 (1955); Dunn v. Dunn, 242 N.C. 234, 87 S.E.2d 308 (1955); Bundy v. Ayscue, 5 N.C. App. 581, 169 S.E.2d 87 (1969); Cornatzer v. Nicks, 14 N.C. App. 152, 187 S.E.2d 385 (1972); Hoots v. Calaway, 282 N.C. 477, 193 S.E.2d 709 (1973); Overstreet v. Brookland, Inc., 52 N.C. App. 444, 279 S.E.2d 1 (1981); Preston v. Thompson, 53 N.C. App. 290, 280 S.E.2d 780 (1981); Wachovia Bank & Trust Co. v. Rubish, 306 N.C. 417, 293 S.E.2d 749 (1982); Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616 (1985); Pee Dee Oil Co. v. Quality Oil Co., 80 N.C. App. 219, 341 S.E.2d 113 (1986); Sprouse v. North River Ins. Co., 81 N.C. App. 311, 344 S.E.2d 555 (1986); Brooks v. Hackney, 329 N.C. 166, 404 S.E.2d 854 (1991); Empl. Staffing Grp., Inc. v. Little, 243 N.C. App. 266, 777 S.E.2d 309 (2015); Se. Caissons, LLC v. Choate Constr. Co., 247 N.C. App. 104, 784 S.E.2d 650 (2016); Coble v. Lawrence (In re Lawrence), 516 B.R. 59 (Bankr. E.D.N.C. 2014); King v. Pender County, 249 N.C. App. 90, 790 S.E.2d 680 (2016).

II. WHAT CONSTITUTES AN INTEREST IN OR CONCERNING LAND.

The authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. Wellman v. Horn, 157 N.C. 170, 72 S.E. 1010 (1911); Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959).

Contract for Subdivision Services. - Statute of frauds was inapplicable to a contract implied in fact between a subdivision association and the property owners to pay for maintenance, upkeep, and operation of the roads, common areas, and recreational facilities within the subdivision because the contract claim was for services rendered to the owners and no interest in land was at issue. Miles v. Carolina Forest Ass'n, 167 N.C. App. 28, 604 S.E.2d 327 (2004).

A mere contract between a broker and the owner of land to negotiate a sale of the latter's land is not required to be in writing. Carver v. Britt, 241 N.C. 538, 85 S.E.2d 888 (1955).

A restrictive covenant creates a negative easement within the statute of frauds, and cannot be proved by parol evidence. Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892 (1954).

Covenants limiting the use of real property are within the scope of the statute of frauds and the registration act. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

An easement is an interest in land and must be in writing. Shepherd v. Duke Power Co., 140 F. Supp. 27 (M.D.N.C. 1956).

An easement is an interest in land and is subject to the statute of frauds. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Easements are interests in land and fall within the scope of this section. Mountain View, Inc. v. Bryson, 77 N.C. App. 837, 336 S.E.2d 432 (1985), cert. denied, 315 N.C. 589, 341 S.E.2d 27 (1986).

Oral agreements relating to an easement, reached before the creation of the easement, are not directly enforceable unless they are in writing. Mountain View, Inc. v. Bryson, 77 N.C. App. 837, 336 S.E.2d 432 (1985), cert. denied, 315 N.C. 589, 341 S.E.2d 27 (1986).

An agreement disclaiming an easement by necessity is within the purview of the statute of frauds. Such an agreement is not directly enforceable unless it is in writing and is duly and properly recorded in the county where the land affected lies. Mountain View, Inc. v. Bryson, 77 N.C. App. 837, 336 S.E.2d 432 (1985), cert. denied, 315 N.C. 589, 341 S.E.2d 27 (1986).

Parol Transfer of Parol Contract. - A parol transfer of the interest of a purchaser of land under a parol contract is invalid. Wilkie v. Womble, 90 N.C. 254 (1884).

An agreement to buy and sell land at a profit is not a contract relating to any interest in land which is required to be in writing. It relates only to profits of the land, and is valid even though not in writing. Newby v. Atlantic Coast Realty Co., 182 N.C. 34, 108 S.E. 323 (1921).

The section contemplates those transactions in which there is a conveyance of land from one party to another; not those as to ventures for profits in realty. Newby v. Atlantic Coast Realty Co., 182 N.C. 34, 108 S.E. 323 (1921).

The statute of frauds clearly does not apply to an oral contract to divide profits from the sale of land. Bumgarner v. Tomblin, 63 N.C. App. 636, 306 S.E.2d 178 (1983).

The statute of frauds has no application to those contracts whereby two persons agreed to purchase land, either generally or as a single venture, for the purpose of reselling the same at a profit and sharing the same between them. Bumgarner v. Tomblin, 63 N.C. App. 636, 306 S.E.2d 178 (1983).

Agreement That Is Not One to Sell or Convey Land. - Where plaintiff alleged that his vendor agreed to procure a release of the land from a prior deed of trust upon the payment by the plaintiff of a note given for the balance of the purchase price of the land, and secured by a deed of trust to his vendor, the agreement is not one to sell or convey land, or any interest in or concerning same, and does not come within the provisions of this section. Hare v. Hare, 208 N.C. 442, 181 S.E. 246 (1935).

A dower interest cannot be surrendered by parol. Houston v. Smith, 88 N.C. 312 (1883). As to abolition of dower and curtesy and right of surviving spouse to elect life estate, see §§ 29-4, 29-30.

An oral contract which undertakes to bind the plaintiff to release her dower interest in the lands of the defendant runs afoul of this section, which renders parol promises to surrender dower unenforceable. Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345 (1951).

Partition. - A contract between tenants in common for the partition in lands is a contract concerning realty, within the meaning of this section. Anders v. Anders, 13 N.C. 529 (1830); Medlin v. Steele, 75 N.C. 154 (1876); Fort v. Allen, 110 N.C. 183, 14 S.E. 685 (1892); Rhea v. Craig, 141 N.C. 602, 54 S.E. 408 (1906).

A parol partition of land is a contract within the purview of this section, and is not binding. And in order for tenants in common to perfect title to the respective shares of land allotted to them by parol, it is necessary for them to go into possession of their respective shares in accordance with the agreement and to hold possession thereof under known and visible boundaries, consisting of lines plainly marked on the ground at the time of the partition, and to continue in possession openly, notoriously and adversely for twenty years. Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692 (1952).

An oral contract to give or devise real estate is void by reason of the statute of frauds, and no action for a breach thereof can be maintained. Daughtry v. Daughtry, 223 N.C. 528, 27 S.E.2d 446 (1943); Clapp v. Clapp, 241 N.C. 281, 85 S.E.2d 153 (1954); Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967). See Neal v. Wachovia Bank & Trust Co., 224 N.C. 103, 29 S.E.2d 206 (1944).

An oral agreement to devise realty is within the statute of frauds and therefore unenforceable. Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164 (1958); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971).

An agreement to devise real property is within the statute of frauds. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524 (1957).

Upon a plea of the statute, an oral contract to convey or to devise real property may not be specifically enforced and no recovery of damages for the loss of the bargain can be predicated upon its breach. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

A contract to devise real property comes within the provisions of this section, and performance of services by the promisee as consideration for the contract does not take the contract out of the provisions of the section, and the promisee cannot successfully maintain an action for specific performance of the contract. Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331 (1933). See also Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477 (1945).

Plaintiffs' claim that a certain tract of land was to be conveyed with other tracts under an option contract was barred by the statute of frauds, G.S. 22-2, because the alleged oral agreement between the parties was not reduced to writing or signed by the parties. Miller v. Russell, 217 N.C. App. 431, 720 S.E.2d 760 (2011).

Defendant's motion to dismiss was properly granted as defendant was the lawful owner of both the decedent's house and his condo because, although there was evidence of an oral agreement that defendant would receive the condo and plaintiff would receive the house, contrary to the terms of the decedent's 2012 will, and the decedent executed and delivered a deed conveying the condo to defendant, he never executed a deed nor amended his will to leave the house to plaintiff; further, plaintiff's arguments all ran counter to the Statute of Frauds as defendant's title to the condo and the house were based on written instruments signed by the decedent, but plaintiff's title to the house was based entirely on parol evidence. Barrett v. Coston, 261 N.C. App. 311, 820 S.E.2d 573 (2018), review denied, 2019 N.C. LEXIS 86 (2019).

Option. - Upon the plea of the statute of frauds by defendant in defense to an action on an option to sell realty, plaintiff may neither enforce the agreement nor recover damages for loss of a bargain. Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

Valid Written Contract to Devise Land Is Enforceable. - Although an oral contract to devise land is unenforceable, a valid written contract to devise land is enforceable in equity. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

An indivisible contract to devise real and personal property comes within the statute of frauds. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948); Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524 (1957); Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962); Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971).

Agreement to Bequeath Personalty. - An agreement to devise realty is within the statute of frauds, and an agreement to bequeath personalty, simpliciter, is not. Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764 (1947).

Contract to Bequeath or Devise Must Be Established by Same Proof Required for Other Contracts. - An aggrieved party may recover for the breach of a contract, made upon sufficient consideration, whereby the promisor agreed to make him the beneficiary of a bequest or devise in his will, but such a contract must be established by the mode of proof legally permissible in establishing other contracts. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962).

Crops and Fruit. - Crops which are produced annually are personal chattels, and a sale of them while growing is only a sale of goods, and not a contract or sale of land, or any interest in or concerning land, under this section. Brittain v. McKay, 23 N.C. 265 (1840).

Fruits on trees cannot be reserved by the vendor by a parol agreement. Flynt v. Conrad, 61 N.C. 190 (1867).

A parol crop-sharing agreement by which certain tobacco land was to be leased and equipment, labor and supplies to be furnished by the parties did not involve an interest in land under this section and was valid. Martin v. Stiers, 165 F. Supp. 163 (M.D.N.C. 1958), aff'd, 264 F.2d 795 (4th Cir. 1959).

Parol Agreement as to Division of Profits from Sale of Land. - Where the grantor alleges that the grantee entered into a contemporaneous parol agreement to reconvey or to sell certain land and divide the profits realized from the sale, and that the grantee had sold the property, the parol agreement as to the division of profits does not involve an interest in land and does not come within the statute of frauds, and, the part of the agreement coming within the statute having been executed, the original grantor may maintain an action for an accounting to determine whether or not any profit was realized from the sale for a division under the agreement. Schmidt v. Bryant, 251 N.C. 838, 112 S.E.2d 262 (1960).

The statute of frauds does not apply where a party seeks to prove an oral agreement with respect to the disposition of proceeds from a sale of land, rather than to force or prevent conveyance of the land itself. Rongotes v. Pridemore, 88 N.C. App. 363, 363 S.E.2d 221 (1988).

Standing Timber. - A contract conveying standing timber is a contract concerning realty. Mizell v. Burnett, 49 N.C. 249 (1857); Drake v. Howell, 133 N.C. 162, 45 S.E. 539 (1903); Ward v. Gay, 137 N.C. 397, 49 S.E. 884 (1905); Ives v. Atlantic & N.C.R.R., 142 N.C. 131, 55 S.E. 74 (1906).

Growing trees are a part of the land, and a contract for the sale thereof comes within the meaning and intent of the statute of frauds. Johnson v. Wallin, 227 N.C. 669, 44 S.E.2d 83 (1947).

Standing trees on land are real property and contracts and conveyances in respect thereto are governed by the same rules applicable to other forms of real property. The statute of frauds defeats a parol conveyance or reservation of timber trees. Westmoreland v. Lowe, 225 N.C. 553, 35 S.E.2d 613 (1945).

A contract of the owner of land to sell at a stipulated price all logs which the owner should cut from the tract is not a contract affecting realty within the meaning of this section, since the cutting and delivery of the logs would constitute a conversion of the standing timber from real property into personalty. Walston v. Lowry, 212 N.C. 23, 192 S.E. 877 (1937).

Guaranty of Acreage. - A vendor's guaranty of the number of acres need not be in writing. Currie v. Hawkins, 118 N.C. 593, 24 S.E. 476 (1896); Sterne v. Benbow, 151 N.C. 460, 66 S.E. 445 (1909).

Also an agreement between vendor and purchaser that the latter shall have the land surveyed, and that if it falls short the vendor shall refund pro tanto, need not be in writing. Sherrill v. Hagan, 92 N.C. 345 (1885).

Equitable Estates. - A parol contract of sale of an equitable estate in land is void. Holmes v. Holmes, 86 N.C. 205 (1882).

Parol Release of Mortgage. - An agreement to terminate the relationship of a mortgagor and mortgagee does not fall within the intent and meaning of this section. Hence, a parol contract to release a part of the mortgaged property is valid and enforceable. Hemmings v. Doss, 125 N.C. 400, 34 S.E. 511 (1899); Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210 (1923).

Where a mortgagee agreed by parol to release the mortgage to a purchaser of the land from the mortgagor, the mortgagee was held estopped to deny the validity of the agreement under the statute of frauds. Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210 (1923).

An unexecuted verbal agreement, made by a mortgagee for a valuable consideration, to release a real estate mortgage does not come within the statute of frauds. Nye v. University Dev. Co., 10 N.C. App. 676, 179 S.E.2d 795, cert. denied, 278 N.C. 702, 181 S.E.2d 603 (1971).

Oral Agreement to Pay Off Loan and Taxes on Property. - Without any written instruments of conveyance as required by G.S. 22-2, the parents' generosity in co-signing on their son's bank loan, paying off the loan for him, and paying the property taxes on the property had to be treated as gratuitous donations rather than as loans giving rise to some type of legal or equitable interest in the garage United States v. Keller, - F. Supp. 2d - (W.D.N.C. Nov. 10, 2008).

Lease for One Year with Provision for Renewals. - An oral lease of realty for one year, together with provision for annual renewals for four successive years, is but a single contract, the agreement for renewal being a part of and inseparable from lease for the original term, and holding for extended term would be under the original oral lease, and contract may not be divided so as to validate it for the initial period and disregard the other portion of the contract. Wright v. Allred, 226 N.C. 113, 37 S.E.2d 107 (1946).

A parol lease for three years is not within the statute. It must be for a term exceeding three years. Smithdeal v. McAdoo, 172 N.C. 700, 90 S.E. 907 (1916).

But a parol lease agreement for more than three years is. Barbee v. Lamb, 225 N.C. 211, 34 S.E.2d 65 (1945), overruled to the extent of any inconsistency by Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

As Is Lease for Three Years to Commence in Futuro. - In order to determine whether a lease is for more than three years or not the computation must be made from the time of making the agreement to lease, and not from the time of its going into effect. Falkner v. Hunt, 73 N.C. 571 (1875); Mauney v. Norvell, 179 N.C. 628, 103 S.E. 372 (1920), overruled to the extent of any inconsistency by Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

Where the owner of land agrees to erect a certain kind of building thereon for a proposed lessee, and makes a parol lease for the rental of the property for three years to take effect upon the completion of the building, the lease for three years, to take effect in the future comes within the provisions of the statute of frauds, and where in an action thereon the lessee denies the contract of lease and pleads the statute, he may not be held liable unless it was executed in writing, or some memorandum thereof made and signed by the party to be charged therewith or by some other person by him duly authorized. Sammax Inv. Co. v. Zindel, 198 N.C. 109, 150 S.E. 704 (1930).

Lease for Duration of Life Estate. - An agreement by the remainderman to rent the locus in quo from the life tenant for the entire period of the life estate is for an indefinite term and one which may last beyond three years and therefore such agreement comes within this section. Davis v. Lovick, 226 N.C. 252, 37 S.E.2d 680 (1946), overruled to the extent of any inconsistency by Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

Assignment of Lease for More Than Three Years. - A verbal assignment of an unexpired lease to continue more than three years is void under this section. Alexander v. Morris, 145 N.C. 22, 58 S.E. 600 (1907).

The English statute of frauds declares void parol assignments or surrenders of leases, but the English statute was not adopted as a part of the common law of North Carolina. The North Carolina statute, embodied in this section, makes no declaration with respect to the assignment or surrender of leases when an unexpired term exceeds three years. Nevertheless, though not mentioned in either this section or G.S. 47-18, an assignment of a lease for more than three years must, to be enforceable, be in writing, and to protect against creditors or subsequent purchasers, must be recorded. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

Surrender of Lease Having Over Three Years to Run. - A parol offer to surrender a leasehold estate having more than three years to run is within the statute of frauds and cannot be specifically enforced. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

Because performance of a parol offer to surrender a leasehold estate having more than three years to run cannot be enforced so long as the contract is executory, that does not mean that a consummated surrender is invalid or that lessee may not by his conduct be estopped to deny the termination of his lease. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

Negative Easement. - A restriction on the use of land being in effect a negative easement is an interest in land required under this section to be contracted for in writing. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925).

Where land in a development is sold by deeds containing certain restrictive covenants, the covenants are in the nature of an easement, and it would seem that ordinarily such easement may not be released by parol agreement. Moore v. Shore, 206 N.C. 699, 175 S.E. 117 (1934).

A negative easement clearly comes within the statute of frauds. Simmons v. Morton, 1 N.C. App. 308, 161 S.E.2d 222 (1968).

In North Carolina a negative easement comes within the statute of frauds, and it cannot be proved by parol evidence. Peoples Serv. Drug Stores, Inc. v. Mayfair, 50 N.C. App. 442, 274 S.E.2d 365 (1981).

Construction of House. - This section does not apply to the construction of a house, as compared to a house already built, because a house not-built is not an "interest in realty." Smith v. Hudson, 48 N.C. App. 347, 269 S.E.2d 172 (1980).

Party Walls. - The right to contribution for costs of a party wall is implied in law regardless of the promise; and hence enforceable notwithstanding that the agreement was not in writing. Reid v. King, 158 N.C. 85, 73 S.E. 168 (1911).

Creation of Mill Dam. - A permanent right to overflow land by the erection and maintenance of a mill dam cannot be created by parol. Bridges v. Purcell, 18 N.C. 492 (1836); Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301, petition for rehearing allowed in part, 216 N.C. 546, 5 S.E.2d 716 (1939).

Judicial Sales. - Judicial sales were not within the contemplation of the legislature at the time of making this enactment. Tate v. Greenlee, 15 N.C. 149 (1833).

Judgment. - The statute of frauds does not require that a judgment constituting a lien on land should be assigned by a written instrument. Winberry v. Koonce, 83 N.C. 351 (1880).

License to use land is not an interest in land. Thus, the statute of frauds has no application. Moon v. Central Bldrs., Inc., 65 N.C. App. 793, 310 S.E.2d 390 (1984).

III. SUFFICIENCY OF COMPLIANCE WITH SECTION.

.

A. IN GENERAL.

.

No special form or instrument is required. A letter, note, bill or draft is sufficient. Neaves v. North State Mining Co., 90 N.C. 412 (1884).

A memorandum, by its very nature, is an informal instrument, and the statute of frauds does not require that it be in any particular form. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Contract May Be Partly Written and Partly Oral. - A contract for the sale of land may be partly verbal and partly in writing, unless the writing purports to embrace all the contract. Thus, where the vendor upon a conveyance by deed, verbally agreed that he would make good any deficiency in the acreage, it was held that this section did not require the agreement as to the quantity to be embraced by the written contract or deed. McGee v. Craven, 106 N.C. 351, 11 S.E. 375 (1890).

What the Writing Must Contain. - In order that a contract falling within the sphere of this section be enforceable it must appear that there is a writing containing expressly or by implication all the material terms of the alleged agreement which must have been signed as required by the section. Gwathmey v. Cason, 74 N.C. 5 (1876); Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104 (1904).

In order to constitute an enforceable contract within the provisions of this section, the written memorandum, though it may be informal, must be sufficiently definite to show the essential elements of a valid contract. It must embody the terms of the contract, names of vendor and vendee, and a description of the land to be conveyed, at least sufficiently definite to be aided by parol. Smith v. Joyce, 214 N.C. 602, 200 S.E. 431 (1938); Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833 (1956); Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

A memorandum or note must contain expressly or by necessary implication the essential features of an agreement to sell. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964).

Even though the contract be informally and awkwardly expressed in the writing, yet if its nature, scope and purpose clearly appear from it, there is a sufficient compliance with the requirements of this section. Mayer v. Adrian, 77 N.C. 83 (1877); Farmer v. Batts, 83 N.C. 387 (1880); Thornburg v. Masten, 88 N.C. 293 (1883); Gordon v. Avery, 102 N.C. 532, 9 S.E. 486 (1889).

The memorandum of a contract to convey realty is insufficient if no buyer therein is identified in the slightest degree. Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833 (1956).

The statute of frauds requires that all essential elements of the contract be reduced to writing. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Where under all the circumstances the meaning of the writing including the description is clear and certain, it is sufficient to comply with the statute of frauds and bind the parties. Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974).

To qualify as a memorandum to take an oral lease out of the statute of frauds, the writing must, at the very least, show all of the essential elements of the agreement, and those elements set out in the writing must not contradict the terms of the oral lease sought to be proved. Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176, aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

The writing must contain a description of the land, the subject matter of the contract, either certain in itself or capable of being reduced to certainty by something extrinsic to which the contract refers. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983).

In a dispute between sisters wherein defendant was the sole beneficiary of their father's estate, a trial court did not err in granting partial summary judgment to defendant on plaintiff's claim that their parents had an agreement to maintain joint and mutual wills because there was no evidence of a written contract between the parents, as required by the statute of frauds, G.S. 22-2. Hankins v. Bartlett, 225 N.C. App. 696, 776 S.E.2d 213 (2013).

It Is Not Necessary for All the Provisions of a Contract to Be Set Out in a Single Instrument. - The memorandum required by the statute is sufficient if the contract provisions can be determined from separate but related writings. The writings must disclose, at least with sufficient definiteness to be aided by parol, the terms of the contract, the names of the parties, and a description of the property. Fuller v. Southland Corp., 57 N.C. App. 1, 290 S.E.2d 754, cert. denied, 306 N.C. 556, 294 S.E.2d 223 (1982).

An enforceable lease or conveyance of land need not be set out in a single instrument, but may arise from a series of separate but related letters or other documents signed by the person to be charged or his authorized agent. Satterfield v. Pappas, 67 N.C. App. 28, 312 S.E.2d 511, cert. denied, 311 N.C. 403, 319 S.E.2d 274 (1984).

The statute of frauds does not require all the provisions of the contract to be set out in a single instrument. The memorandum required by the statute is sufficient if the contract provisions can be determined from separate but related writings. Rose v. Lang, 85 N.C. App. 690, 355 S.E.2d 795 (1987).

As the essential terms of a lease do not to be contained in one writing to be valid, a new lease incorporating the description of the land contained in the old lease satisfied the Statute of Frauds as to the description of the property leased. Purchase Nursery, Inc. v. Edgerton, 153 N.C. App. 156, 568 S.E.2d 904 (2002).

A check can be a sufficient memorandum, provided it contains, expressly or by necessary implication, the essential elements of an agreement to sell. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Essential elements of an agreement to sell include a designation of the vendor, the vendee, the purchase price, and a description of the land, the subject-matter of the contract, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Essentials of Lease. - The essentials of a lease which must be disclosed in the memorandum with sufficient definiteness to be aided by parol evidence are: (1) the parties' names (lessor and lessee), (2) a description of the realty demised, (3) a statement of the term of the lease, and (4) the rent or other consideration. Additionally, a memorandum of lease must be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized. Fuller v. Southland Corp., 57 N.C. App. 1, 290 S.E.2d 754, cert. denied, 306 N.C. 556, 294 S.E.2d 223 (1982).

Lessee Must Show Intent to Lease. - "Negotiation Summary" outlining stages of the negotiations between the lessor and the lessee regarding a commercial lease, which did not indicate the lessee's intention to be bound to a lease, did not satisfy the statute of frauds. B & F Slosman v. Sonopress, Inc., 148 N.C. App. 81, 557 S.E.2d 176 (2001), cert. denied, 355 N.C. 283, 560 S.E.2d 795 (2002).

Draft lease and letters which a bank sent to landowners during negotiations on the terms of a commercial lease did not show that the bank intended to be bound by those documents, and the trial court properly granted the bank's motion for a directed verdict on the landowners' claim alleging breach of contract because the landowners did not show that the documents satisfied the statute of frauds. Howlett v. CSB, LLC, 164 N.C. App. 715, 596 S.E.2d 899 (2004), cert. denied sub nom. Williams v. CSB, LLC, - N.C. - , 604 S.E.2d 313 (2004).

Failure to Agree on Nonessential Terms. - If all essential elements of a contract to convey or lease land have been agreed upon by the parties and are contained in some writing or memoranda, signed by the party to be charged or his authorized agent, then there can still be a valid, binding contract to convey or lease land, even if there is no agreement on other nonessential terms. Satterfield v. Pappas, 67 N.C. App. 28, 312 S.E.2d 511, cert. denied, 311 N.C. 403, 319 S.E.2d 274 (1984).

The agreement must adequately express the intent and obligation of the parties. - Parol evidence cannot be received to supply anything which is wanting in the writing to make it the agreement on which the parties rely. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962); Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

The writing must show the promise or obligation which the complaining party seeks to enforce. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962); Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

Estoppel letter did not satisfy North Carolina's statute of frauds because the estoppel letter was signed only by plaintiff landlord, not defendant corporation, and nowhere in the letter did the corporation agree to be an assignee or ask to take over the lease by being billed or otherwise; the letter made clear that the tenant, which had been purchased by the corporation, remained as the tenant. C & H P'ship v. Shaw Indus. Group, Inc., - F. Supp. 2d - (M.D.N.C. May 4, 2006).

Writing Must Describe Subject Matter. - In order to take an agreement relating to land out of the statute of frauds, the writing must describe the subject matter with certainty or refer to matters aliunde from which the description can be made certain. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593 (1946).

A memorandum or note must contain a description of the land, the subject matter of the contract, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974).

A deed or contract to sell land must contain, among other things, sufficient description of land to be sold or conveyed, to satisfy statute of frauds. To be sufficient, description must be certain in itself or capable of being reduced to certainty by reference to something extrinsic to which contract refers. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

Trial court properly concluded that, because the deed of trust executed by borrowers contained no description of the real property, it did not meet the provisions of the statute of frauds and was void where the deed did not include a description of the real property at the time of execution, and such description was later added to the deed without the borrowers' consent or knowledge; the lender provided no legal authority for its assertion that a deed lacking legal descriptions of the real property to be conveyed could have been cured unilaterally by recording said deed with novel legal descriptions unseen by the other party. In re Hudson, 182 N.C. App. 499, 642 S.E.2d 485 (2007).

Statement of Time for Performance Not Necessarily Required. - A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because the time for performance is not stated therein. In case of an executory contract of sale, where the time for the execution of the conveyance or transfer is not limited, the law implies that it is to be done within a reasonable time, and the failure to incorporate in the memorandum such a statement does not render it insufficient. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Omission from the memorandum of time of performance is not fatal. Where no time of performance is stated, the law implies that the option must be exercised within a reasonable time. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

There Must Be No Patent Ambiguity. - The only requisite in evaluating the written contract, as to the certainty of the thing described, is that there be no patent ambiguity in the description. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Property descriptions that purport to carve small tracts of land out of larger tracts must specifically identify part to be conveyed in order to comply with statute of frauds. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

When Patent Ambiguity Exists. - There is a patent ambiguity when the terms of the writing leave the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977); Taefi v. Stevens, 53 N.C. App. 579, 281 S.E.2d 435, cert. denied, 304 N.C. 393, 285 S.E.2d 837 (1981), modified on other grounds and aff'd, 305 N.C. 291, 287 S.E.2d 898 (1982).

When a description in a contract to convey land leaves the land in a state of absolute uncertainty, and refers to nothing extrinsic by which it might be identified with certainty, it is patently ambiguous and parol evidence is not admissible to aid the description. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

A description which leaves the subject of the contract, the land, in a state of absolute uncertainty, and which refers to nothing extrinsic by which it might possibly be identified with certainty, is patently ambiguous. Parol evidence is not admissible to aid such a description, and the instrument which contains it is void. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983).

Patent ambiguity is such an uncertainty appearing on face of instrument that a court, reading language in light of all facts and circumstances referred to in instrument, is unable to derive therefrom intention of the parties as to what land was to be conveyed. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

When description in contract to convey land is patently ambiguous the deed or contract is void. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Patently ambiguous contract is void under the statute of frauds. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Patent Ambiguity a Question of Law. - Whether a description in a contract to convey land is patently ambiguous is a question of law. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

The question of patent ambiguity is one of law for the court. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Latent Ambiguity in Description. - A description in a contract to convey land is latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

A description is said to be latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977); Taefi v. Stevens, 53 N.C. App. 579, 281 S.E.2d 435, cert. denied, 304 N.C. 393, 285 S.E.2d 837 (1981), modified, 305 N.C. 291, 287 S.E.2d 898 (1982).

A description is latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. In such case plaintiff may offer evidence, parol and other, with reference to such extrinsic matter tending to identify the property, and defendant may offer such evidence with reference thereto tending to show impossibility of identification, i.e., ambiguity. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983).

The description "my entire woodland" while not patently ambiguous, was latently so. Plaintiff thus could offer evidence, parol and other, which tended to identify the property. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983).

Where a contract incorporated by reference an external document by which identification of the land could be made certain, such internal reference rendered the contract latently, rather than patently ambiguous. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

A description is latently ambiguous if it is insufficient, by itself, to identify the land, but refers to something external by which identification might be made. The reference must be to another document; that two documents refer to the same subject matter does not make them part of the same contract. The connection between documents must be clear and cannot be shown by extrinsic evidence. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Property description contained in a lease was latently rather than patently ambiguous, and the trial court should have considered extrinsic evidence in order to determine the identity of the property before ruling on the validity of the lease; therefore, the trial court erred in granting a motion by the lessor for summary judgment on the validity of the lease on the ground that the property description was insufficient as a matter of law. Elec. World, Inc. v. Barefoot, 153 N.C. App. 387, 570 S.E.2d 225 (2002).

Summary judgment was improperly granted in an action seeking specific performance because a genuine issue of fact existed as to the statute of frauds, G.S. 22-2; there was a latent ambiguity due to the extrinsic means of identification, but a survey problem precluded judgment as a matter of law. Wolfe v. Villines, 169 N.C. App. 483, 610 S.E.2d 754 (2005).

Whether Ambiguity Is Patent or Latent Is Question of Law. - Where ambiguity exists in a property description contained in writing, it is question of law to be decided by court as to whether ambiguity is patent or latent. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

Patent and Latent Ambiguities Compared. - A patent ambiguity raises a question of construction; a latent ambiguity raises a question of identity. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

If the ambiguity is latent, evidence dehors the contract is both competent and necessary. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Patent Ambiguity Precludes Use of Parol Evidence. - When the language of the writing is patently ambiguous, parol evidence is not admissible to aid the description. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964).

Parol evidence is not admitted to explain patent ambiguities. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

Memorandum Inconsistent with Contract. - Where the memorandum of a contract partly in parol was inconsistent with the terms of the contract, it was held that the memorandum not being the contract between the parties, the plaintiff suing under the parol contract was not entitled to recover. Keith v. Bailey, 185 N.C. 262, 116 S.E. 729 (1923).

Sufficiency of Description. - This section does not render void a contract which contains a defective description merely. It only requires that the contract be in writing and signed by the party to be charged. Durham Consol. Land & Imp. Co. v. Guthrie, 116 N.C. 381, 21 S.E. 952 (1895).

The Supreme Court has uniformly recognized the principle that a deed conveying land, or a contract to sell and convey land, or a memorandum thereof, within the meaning of the statute of frauds must contain a description of the land, the subject matter thereof, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed, contract or memorandum refers. Kelly v. Kelly, 246 N.C. 174, 97 S.E.2d 872 (1957); Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d 783 (1970); Sheppard v. Andrews, 7 N.C. App. 517, 173 S.E.2d 67 (1970); Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

If the description is sufficiently definite for the court, with the aid of extrinsic evidence, to apply the description to the exact property intended to be sold, it is enough. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964); Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

A memorandum is insufficient to meet the requirements of this section where the writing itself does not point to anything except two roads and these roads do not enclose any boundary. Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d 783 (1970).

The writings must disclose, at least with sufficient definiteness to be aided by parol, the terms of the contract, the names of the parties, and a description of the property. Greenberg v. Bailey, 14 N.C. App. 34, 187 S.E.2d 505 (1972).

The designation of a tract of land by its popular name is sufficient under the statute of frauds to permit the introduction of extrinsic evidence to identify the particular tract intended. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

A written contract to convey the grantor's entire tract of land consisting of 146 acres was, under the circumstances of the case, held to be sufficiently certain as to the land conveyed, so as to admit parol evidence in regard to the identity of the land without violating the statute of frauds. Norton v. Smith, 179 N.C. 553, 103 S.E. 14 (1920). See Higdon v. Rice, 119 N.C. 623, 26 S.E. 256 (1896), where it is said that a defective description cannot be aided by parol testimony because that would mean to substitute by parol an essential portion of a contract required by this section to be in writing; though mistakes can be corrected and ambiguities explained by parol.

Where the calls of a deed are sufficiently definite, the locations cannot be changed by parol agreement unless contemporaneous. Haddock v. Leary, 148 N.C. 378, 62 S.E. 426 (1908).

The following memorandum found in the books of the defendant's intestate was held too vague and uncertain to take the contract out of the statute: "1841, W. P. to H. C. O. Dr. To 4 loads of Rock, one lot at one year's credit, $125." Plummer v. Owens, 45 N.C. 254 (1853).

The memorandum of a sale of standing timber must be sufficiently definite in its essential elements to comply with the requirements of the statute of frauds to enable the court to decree specific performance; but latent ambiguities may be explained by parol evidence. Camp Mfg. Co. v. Jordan, 292 F. 182 (E.D.N.C. 1923). See also Keith v. Bailey, 185 N.C. 262, 116 S.E. 729 (1923).

When all the circumstances of possession, ownership, and situation of the parties, and of their relation to each other and the property, as they were when the negotiation took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. Norton v. Smith, 179 N.C. 553, 103 S.E. 14 (1920); Gilbert v. Wright, 195 N.C. 165, 141 S.E. 577 (1928).

Agreement "to buy the vacant lot," from the vendor was held not unenforceable under this section where the evidence showed that it was the only lot owned by the vendor anywhere. Gilbert v. Wright, 195 N.C. 165, 141 S.E. 577 (1928).

A memorandum "Received of C. L. $50.00 for home place where he now lives which he has no deed for" dated and signed by the owner of land is sufficiently definite to admit of parol evidence for the purpose of identifying the land, and memorandum being sufficient under statute of frauds, purchaser may introduce another receipt executed by owner, even though it does not purport to identify the land, and show by parol that it was part of the consideration for the land contracted to be conveyed. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593 (1946).

Vague and Indefinite Description of Land Void. - If description of land is so vague and indefinite that effect cannot be given instrument without writing new, material language into it, then it is void and ineffectual. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

Writing did not sufficiently describe particular twenty-five acre portion of tract because northern boundary, described as "with the Whitehead line. Thence straight to road that goes by Plainfield Church ..." could have been drawn in infinite number of ways. Accordingly, as a matter of law, the contract was void under statute of frauds and not enforceable. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361 (1990), rev'd on other grounds, 329 N.C. 166, 404 S.E.2d 854 (1991).

Statement of Price Not Always Required. - Where the vendor is the party to be charged, the statute of frauds does not require that the price be stated in writing. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

In a contract for the sale of land, where the vendor is the party to be charged it is not necessary that the price be stated in writing. Northwestern Bank v. Church, 43 N.C. App. 538, 259 S.E.2d 313 (1979), cert. denied, 299 N.C. 328, 265 S.E.2d 397 (1980).

Omission from the memorandum of the manner of payment is not fatal. Where the contract fails to specify the manner and form of payment, the contract is construed to require payment to be made in cash simultaneously with tender or delivery of the deed. Hurdle v. White, 34 N.C. App. 644, 239 S.E.2d 589 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Requisites of Deeds. - A deed conveying land within the meaning of the statute of frauds must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The office of description is to furnish, and is sufficient when it does furnish, means of identifying the land intended to be conveyed. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501 (1951); Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759 (1953).

The vendor of lands, in substantial conformity with his parol agreement, tendered the vendee a deed to the lands, which the latter refused because the amount of the agreed purchase price had been increased, and after the vendor had sold the lands the vendee brought an action for damages. It was held that the deed tendered was a sufficient writing within the statute of frauds to bind the vendor, and the vendee could recover damages sustained by defendant's breach of contract to convey. Oxendine v. Stephenson, 195 N.C. 238, 141 S.E. 572 (1928).

A valid contract to convey land must contain expressly or by necessary implication all the essential features of an agreement to sell, one of which is a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source designated therein. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

A contract to sell or convey land, or a memorandum thereof, within the meaning of the statute of frauds, must contain a description of the land, the subject matter of the contract, which is either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. Watts v. Ridenhour, 27 N.C. App. 8, 217 S.E.2d 211 (1975).

To be valid, a contract to convey a part of a tract of land must definitely identify the portion to be conveyed or designate the means or source by which it can be positively identified. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Deed Held to Be a Sufficient Writing. - A deed duly executed and acknowledged and found among the valuable papers of the grantor after his death is a sufficient writing within the meaning of the statute of frauds of a contract of grantor to convey the lands to the grantees in consideration of grantees' taking care of grantor for the remainder of his life. Austin v. McCollum, 210 N.C. 817, 188 S.E. 646 (1936).

Letters Held Sufficiently Definite and Certain. - Letters from testatrix to plaintiff held sufficiently definite and certain to constitute a memorandum of a contract to convey property to plaintiff in return for certain services. Heiland v. Lee, 207 F.2d 939 (4th Cir. 1953).

Letters from the agent for plaintiffs to defendants, and the reply of the agent for defendants, were a sufficient memorandum to meet the requirements of this section. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965).

A contract to convey, excepting a part of the land described, is valid provided land excepted can be identified. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

A contract to convey 200 acres of a larger described tract is saved from patent ambiguity by the provision that the acreage is "to be determined by a new survey furnished by the sellers." Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Excepted property in a contract to convey land is described with sufficient certainty if the exact location thereof is left to the election of the grantor or is capable of subsequent ascertainment otherwise. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Grant of Easement. - No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms. The instrument should describe with reasonable certainty the easement created and the dominant and servient tenements. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Easement Not Void for Uncertainty of Location. - When the grant does describe with reasonable certainty the easement created and the dominant and servient tenements, but does not definitely locate it, the easement is not held void for uncertainty under the statute of frauds, but instead, the grantee is entitled to a reasonable and convenient way located in the manner and within the limits set forth in the grant. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Easement may be located by the practical location by the grantee, acquiesced in by the grantor. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

Conveyance of Remainder. - In a contract to convey land, once lands to be retained by the sellers are surveyed and the description of the property obtained, a conveyance, excepting the land to be retained by metes and bounds as shown by the survey, operates as a conveyance of the remainder. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

An agreement conditioned upon a party's obtaining financing was a valid and enforceable contract, supported by consideration. The contract included an implied promise by the party seeking financing to use reasonable effort to procure a loan and to exercise good faith in deciding whether the terms of the loan were satisfactory. Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974).

Parol Acceptance of Option. - A written option offering to sell, at the election of the optionee, can become binding on the owner by verbal notice to the owner, but a parol acceptance by the optionee is not sufficient to repel the statute of frauds and bind the optionee. Warner v. W & O, Inc., 263 N.C. 37, 138 S.E.2d 782 (1964).

A written option offering to sell, at the election of the optionee, can become binding on the owner by a verbal notice to the owner. Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967), quoting Burkhead v. Farlow, 266 N.C. 595, 146 S.E.2d 802 (1966).

Where the vendor offers in writing to sell described realty at a stated price, payable in yearly installments, a verbal acceptance of the offer by the purchaser is sufficient to constitute an option enforceable by the purchaser. Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

A parol agreement regarding the conditional delivery of a written contract for the conveyance of land is valid; it does not contradict the written instrument, but only postpones its effectiveness until after the condition has been performed or the event has happened. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964).

A receipt for the cash payment on an identified tract of land belonging to an estate, signed by the executor, who is also an heir and authorized to act in the matter by the other heirs, is a sufficient memorandum of the contract to convey, signed by the party to be charged within the requirement of the statute of frauds. Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959).

Joint Will May Be Sufficient Memorandum of Contract to Devise. - An indivisible contract to devise real and personal property comes within the purview of the statute of frauds. But a joint will may itself be a sufficient memorandum of such contract to satisfy the statute of frauds. Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970).

Under certain circumstances a joint will may itself be a sufficient memorandum of an agreement between the parties to the will to satisfy the statute of frauds. Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971).

Will Not Sufficient as Memorandum or Note of Contract. - See McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962).

The mere exercise of the statutory right to dispose of one's property at death is not of itself evidence that the disposition directed is compelled by a contractual obligation. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430 (1971).

A promissory note for the purchase price, signed and given by the purchaser, is not such a contract or memorandum thereof. Burriss v. Starr, 165 N.C. 657, 81 S.E. 929 (1914).

Memorandum Sufficient to Devise Property. - Memorandum which designates the property to be devised, identifies the parties, sets forth their respective obligations as consideration for their contract, and is signed by the party to be charged therewith, was sufficient as a memorandum to devise "for the purposes of the statute of frauds." Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975).

The memorandum need not be contained in a single document but may consist of several papers properly connected together. Smith v. Joyce, 214 N.C. 602, 200 S.E. 431 (1939); Millikan v. Simmons, 244 N.C. 195, 93 S.E.2d 59 (1956); Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833 (1956); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974).

This section does not require all of the provisions of the contract to be set out in a single instrument. The memorandum required by this section is sufficient if the contract provisions can be determined from separate but related writings. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965); Greenberg v. Bailey, 14 N.C. App. 34, 187 S.E.2d 505 (1972).

Contract when considered together with a separate sheet of "Attachment" constituted a memorandum sufficient to satisfy the statute of frauds, where the contract specifically stated that the tract being sold was "more particularly described in Attachment hereof." Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974).

Sufficient Memorandum of Extension Agreement. - See Hardee's Food Sys., Inc. v. Hicks, 5 N.C. App. 595, 169 S.E.2d 70 (1969).

Letters addressed to third party may be used against the writer as a memorandum of it. Such writings are sufficient evidence of the contract to warrant the court in giving effect to it. Mizell v. Burnett, 49 N.C. 249 (1857); Nicholson v. Dover, 145 N.C. 18, 58 S.E. 444 (1907).

Series of Letters Construed Together. - A series of letters, telegrams or other papers, documents, etc., signed as required by this section, will be construed together, and when the contract appears to be complete, the omission in some of the writings will be supplied by the others. Simpson v. Burnett County Lumber Co., 193 N.C. 454, 137 S.E. 311 (1927).

As to Seal. - The statute of frauds does not require a contract for the sale of land to be under the seal of the party to be charged. Simmons v. Spruill, 56 N.C. 9 (1856); Stephens v. Midyette, 161 N.C. 323, 77 S.E. 243 (1913).

A seal is not necessary to the validity of a lease regardless of the length of the term, and the common law, which did not require leases to be in writing, is in full force and effect, modified only by the requirement of this section that a lease of more than three years be in writing. Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369 (1947).

Receipts for principal and interest and for taxes, in which no mention is made of any agreement by the person signing same to sell or convey land, are insufficient under the provisions of this section. Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652 (1945).

The admissions of the parties in their pleadings may stand for the writing. Sandlin v. Kearney, 154 N.C. 596, 70 S.E. 942 (1911).

Mere Recital of Agreement in Pleading Is Not Waiver of Statute. - A party is not estopped by his pleading from asserting the defense of the statute of frauds unless the pleading asserts the voidable contract as a necessary basis for the relief sought, and the mere recital of the parol agreement in the pleading does not adopt it or ratify it or waive the right to thereafter assert the statute in subsequent pleadings. Davis v. Lovick, 226 N.C. 252, 37 S.E.2d 680 (1946), overruled on other grounds in Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981).

Time of Making Memorandum. - The written memorandum required by this section need not necessarily be made at the time of the agreement. Even if made thereafter, if otherwise good, it will be valid. Mizell v. Burnett, 49 N.C. 249 (1857); McGee v. Blankenship, 95 N.C. 563 (1886); Winslow v. White, 163 N.C. 29, 79 S.E. 258 (1913); McCall v. Lee, 182 N.C. 114, 108 S.E. 390 (1921); Millikan v. Simmons, 244 N.C. 195, 93 S.E.2d 59 (1956).

An agreement to extend an option to purchase land, made on the 13th of the month and reduced to writing and signed on the 15th, is enforceable between the parties as of the 13th. Millikan v. Simmons, 244 N.C. 195, 93 S.E.2d 59 (1956).

Requiring Execution of Settlement Agreement. - Requiring a landowner to execute a written settlement agreement, where he had orally agreed upon the settlement's terms in open court, did not violate the Statute of Frauds because the hearing transcript, draft agreement, and associated e-mails, when read together, complied with the requirements of the Statute of Frauds. Powell v. City of Newton, 200 N.C. App. 342, 684 S.E.2d 55 (2009), aff'd in part and modified in part 364 N.C. 562, 703 S.E.2d 723, 2010 N.C. LEXIS 1078 (2010).

Parol Evidence of Parties' Intentions. - Where certain exhibits are found to be insufficiently related to one another by "internal reference" for consideration as a portion of a memorandum of lease under this section, they may be considered as parol evidence of the parties' intentions where the terms of the memorandum are ambiguous. Fuller v. Southland Corp., 57 N.C. App. 1, 290 S.E.2d 754, cert. denied, 306 N.C. 556, 294 S.E.2d 223 (1982).

Evidence of Preliminary Negotiations or Understanding of Parties. - The legal effect of a final instrument which defines and declares the intentions and rights of the parties cannot be modified or corrected by proof of any preliminary negotiations or agreement, nor is it permissible to show how the parties understood the transaction in order to explain or qualify what is in the final writing, in the absence of an allegation of fraud or mistake or unless the terms of the instrument itself are ambiguous and require explanation. Fuller v. Southland Corp., 57 N.C. App. 1, 290 S.E.2d 754, cert. denied, 306 N.C. 556, 294 S.E.2d 223 (1982).

Real Estate Agent's Emails. - Buyers were entitled to summary judgment on a seller's breach of contract claim regarding the purchase and sale of real property because email communications by the buyers' real estate agent updating the seller about the status of the documents, including emails that the buyers "agree to the counteroffer" and the agent "should also have the initialed changes to the contract tomorrow," did not indicate the contract reflecting the counteroffer had been initialed or signed; the contract became binding when it had been signed or initialed by both parties. Manecke v. Kurtz, 222 N.C. App. 472, 731 S.E.2d 217 (2012).

B. THE SIGNATURE.

.

What Constitutes Signing. - The signing of a paper writing or instrument is the affixing of one's name thereto with the purpose or intent to identify the paper or instrument, or to give it effect as one's act. McCall v. Textile Ind. Inst., 189 N.C. 775, 128 S.E. 349 (1925).

Although the place of the signature upon the writing of the party to be charged is immaterial, and such party need not necessarily "subscribe" the writing, yet there must be a writing in which such party must have put his name with the intention of signing it. Thus, where the plaintiff, the purchaser, gave for the purchase price a note to the defendant which was filled in by the latter payable to his own name, it was held that the note was not signed by the defendant, since filling in the note with his own name was not equivalent to signing it. Burriss v. Starr, 165 N.C. 657, 81 S.E. 929 (1914).

The signing of a paper writing or instrument is the affixing of one's name thereto, with the purpose or intent to identify the paper or instrument, or to give it effect as one's act. This is usually accomplished when a person affixes his name in his own handwriting, in such case the very act clearly evidencing the intent of the signer. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

A writing or memorandum is "signed" in accordance with the statute of frauds if it is signed by the person to be charged by any of the known modes of impressing a name on paper, namely, by writing, printing, lithographing, or other such mode, provided the same is done with the intention of signing. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

The signature to a memorandum under the statute of frauds may be written or printed and need not be subscribed at the foot of the memorandum, but must be made or adopted with the declared or apparent intent of authenticating the memorandum as that of the signer. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Affixing one's handwritten signature is not the only method by which a paper writing may be considered as being signed within the meaning of the statute of frauds. It has been recognized that a printed name may constitute a sufficient signing under the statute of frauds, provided that it is recognized by the party sought to be charged. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Parties' settlement agreement was not in compliance with the statute of frauds, G.S. 22-2, because the property owner's statements in open court and the subsequent email correspondence did not constitute the signature required by the statute, as the emails showed that the parties intended for the owner's physical signature to appear on the settlement agreement and release. Powell v. City of Newton, 364 N.C. 562, 703 S.E.2d 723 (2010).

Place of Signing. - This section is satisfied when the writing contains the signature anywhere in the instrument. Flowe v. Hartwick, 167 N.C. 448, 83 S.E. 841 (1914).

This section does not require that the memorandum of sale be "subscribed," it only requires that it be signed. Hence, the signing by the auctioneer of the name of the highest bidder on the side of a printed advertisement is a sufficient signing of the contract. Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902 (1891); Proctor v. Finley, 119 N.C. 536, 26 S.E. 128 (1896).

Mark Sufficient. - When written by the party to be charged, a mark of an illiterate person is a sufficient signature to fulfill the requirement of the statute. Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902 (1891).

The phrase "the party to be charged" does not necessarily refer to the vendor, it may refer to the vendee. The party to be charged, within the meaning of the section is the defendant in the action, whoever he may be. Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104 (1904).

Failure of Party to Sign. - Promissory note was unenforceable for lack of consideration to support the note because an option to purchase in a lease document that was cross-referenced in the note violated the statute of frauds, as it was not signed by the payee of the note. Kyle v. Felfel, 254 N.C. App. 684, 803 S.E.2d 249 (2017), review denied, 805 S.E.2d 682, 2017 N.C. LEXIS 831 (N.C. 2017).

In a suit for the specific performance of a contract to convey land the "party to be charged" is the vendor, and hence the contract must have been signed by him. The vendee does not fulfill the condition imposed on him to show that the statute has been complied with, by a writing by which he alone is bound. Clegg v. Bishop, 188 N.C. 564, 125 S.E. 122 (1924).

The "party to be charged" under this section is the one against whom the relief is sought; and if the contract is sufficient to bind him, he can be proceeded against, though the others could not be held because, as to them, the statute is not fully complied with. Lewis v. Murray, 177 N.C. 17, 97 S.E. 750 (1919).

Thus, a contract in writing to sell land, signed by the vendor is good against him, although the correlative obligation to pay the price is not in writing and cannot be enforced against the purchaser. Mizell v. Burnett, 49 N.C. 249 (1857).

The statute requires that the writing be signed by the party to be charged. So, if A contract in writing to sell land to B, the former's promise being in writing and signed, but the latter's not, A would be bound to perform, but B would not. Mizell v. Burnett, 49 N.C. 249 (1857); Durham Consol. Land & Imp. Co. v. Guthrie, 116 N.C. 381, 21 S.E. 952 (1895).

Member of Corporation or Partner May Sign. - Under the clause "or by some other person by him thereto lawfully authorized" a member of a corporation or a partner is a competent agent to sign for the corporation or partnership. Neaves v. North State Mining Co., 90 N.C. 412 (1884).

Signature of Agent. - If signed by one who is proved or admitted by the principal to have been authorized as agent, it is a sufficient compliance with the statute if the agent signs his own name instead of that of his principal by him. Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16 (1892); Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

The name of the party to be charged may be signed by some other person under the express terms of this section. In re Williams' Will, 234 N.C. 228, 66 S.E.2d 902 (1951).

This section permits an agent to bind his principal, and the agent may do so by signing his name. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965).

Where the agent is the one by whom the contract or the memorandum is signed, the authority of the agent to sign it for his principal need not have been given in writing. And even a subsequent ratification of an unauthorized signing will suffice. Johnston v. Sikes, 49 N.C. 70 (1856).

It is not necessary that the name of the principal or his relation to the transaction shall appear upon the writing itself or in the form of the signature. Neaves v. North State Mining Co., 90 N.C. 412 (1884).

The writing required by the statute of frauds may be signed by an agent, and the agent's authority to do so need not be in writing. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

The owner of real estate may sell such property through an agent, and when so acting the owner is not required to sign the agreement or to communicate with the purchaser. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).

The agent may sign the contract to sell and convey in his own name or in the name of his principal or principals. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).

The authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).

The authority of an agent to sell the lands of another may be shown aliunde or by parol. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).

The owner of land may sell his land through an agent and the agent may sign a contract to sell and convey in his own name or in the name of his principal(s). Hayman v. Ross, 22 N.C. App. 624, 207 S.E.2d 348 (1974).

When Broker May Sign for Both Parties. - Ordinarily, a broker does not act in a dual capacity as the representative of both sides to a negotiation, but only as the agent of the party who first employed him. Once a deal is concluded, however, the law permits him to act as the representative of both parties if they assent thereto, for the purpose of signing a memorandum sufficient to take the transaction out of the statute of frauds. Hayman v. Ross, 22 N.C. App. 624, 207 S.E.2d 348 (1974).

A subsequent ratification of an unauthorized signing will make it valid within this section. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Telegrams. - A telegram to which the vendor's name has been affixed in print may be considered as having been signed by the vendor within the meaning of the statute of frauds. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Ordinance, Resolution or Vote. - An ordinance, resolution or vote of a municipal corporation, accepting a lease or contract tendered, does not constitute a signing within the meaning of the statute. Wade v. New Bern, 77 N.C. 460 (1877).

C. STATEMENT OF CONSIDERATION.

.

Contract Must Fix the Price. - A contract for the sale of land or any interest therein, must fix the price, and where it does not, plaintiff cannot establish by parol evidence a change as to one of the essential terms of the contract as this would open the door to "all the mischiefs which the statute was intended to prevent." Harvey v. Linker, 226 N.C. 711, 40 S.E.2d 202 (1946); Shepherd v. Duke Power Co., 140 F. Supp. 27 (M.D.N.C. 1956).

Whether oral or in writing, the contract must have a consideration to support it. Draughan v. Bunting, 31 N.C. 10 (1848); Stanly v. Hendricks, 35 N.C. 86 (1851); Combs v. Harshaw, 63 N.C. 198 (1869); Haun v. Burrell, 119 N.C. 544, 26 S.E. 111 (1896). But if in writing, the consideration need not appear in the writing, and may be shown by parol Nichols v. Bell, 46 N.C. 32 (1853); Virginia Trust Co. v. Lambeth Realty Corp., 215 N.C. 526, 2 S.E.2d 544 (1939); North Carolina Mtg. Corp. v. Wilson, 205 N.C. 493, 171 S.E. 783 (1933); Commercial Credit Corp. v. Robeson Motors, Inc., 243 N.C. 326, 90 S.E.2d 886 (1956). But see Commercial Fin. Co. v. Holder, 235 N.C. 96, 68 S.E.2d 794 (1952), where it is said that a memorandum of a contract for the sale of land is not good as against the vendee unless it shows the price to be paid.

Cross-Reference to Document. - Promissory note was unenforceable for lack of consideration to support the note because an option to purchase in a lease document that was cross-referenced in the note violated the statute of frauds, as it was not signed by the payee of the note. Furthermore, consideration was not provided retroactively by a subsequent lease document, which both referenced the option and purported to grant the payors a new option, because the note did not did not cross-reference the subsequent lease document. Kyle v. Felfel, 254 N.C. App. 684, 803 S.E.2d 249 (2017), review denied, 805 S.E.2d 682, 2017 N.C. LEXIS 831 (N.C. 2017).

Change of Purchase Price in Option. - Where purchase price of land was changed in an option it constituted a new contract, unenforceable unless signed by the parties to be charged. Harvey v. Linker, 226 N.C. 711, 40 S.E.2d 202 (1946).

IV. PART PERFORMANCE.

.

In General. - The doctrine which prevails in many states, that a part or even a full performance of the stipulation of an unwritten agreement for the disposition of an interest in land exempts such agreement from the operation of the statute of frauds, is not recognized in this State under this section which declares such agreements to be void and of no effect. Ellis v. Ellis, 16 N.C. 341 (1829); Kivett v. McKeithan, 90 N.C. 106 (1884); Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301, petition for rehearing allowed in part and dismissed in part, 216 N.C. 546, 5 S.E.2d 716 (1939). In such a case, however, the party who has advanced the purchase price or has made improvements shall be refunded his advances. Kivett v. McKeithan, supra; 278 N.C. 701, 181 S.E.2d 602 (1971); Northwestern Bank v. Barber, 79 N.C. App. 425, 339 S.E.2d 452; 316 N.C. 733, 345 S.E.2d 391 (1986). See also, Smith v. Finance Co. of Am., 207 N.C. 367, 177 S.E. 183 (1934); Cuthberton v. Peoples Bank, 170 N.C. 531, 87 S.E. 333 (1915), where cases were held not within statute.

North Carolina has repudiated and consistently declined to follow the doctrine of part performance. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

The remedy of the promisee who has rendered personal services in consideration of an oral contract to devise real estate void under the statute of frauds is an action on implied assumpsit or quantum meruit for the value of the services rendered. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

Where the promisor in an oral contract to convey or devise real property has received the purchase price in money or other valuable consideration and has failed to transfer title, the promisee may recover the consideration in an action of quasi-contract for money had and received or under the doctrine of unjust enrichment. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

Permanent improvements made by the purchaser in possession under an unenforceable contract to convey are sufficient claim of title to support a claim for betterments, and the statute of frauds may not be asserted to defeat such claim. Pamlico County v. Davis, 249 N.C. 648, 107 S.E.2d 306 (1959).

V. PLEADING AND PRACTICE.

.

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, a parol contract to sell or convey land may be enforced. Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196 (1952); Laing v. Lewis, 133 N.C. App. 172, 515 S.E.2d 40 (1999).

Three Modes of Taking Advantage of Statute. - The party to be charged may take advantage of the statute by pleading the statute specifically, by denying the contract, or by alleging another and different contract. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

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. Simmons v. Morton, 1 N.C. App. 308, 161 S.E.2d 222 (1968).

Defense Can Only Be Raised by Answer or Reply. - The provisions of the statute of frauds cannot be taken advantage of by motion to strike. Such defense can only be 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; (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;" 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. Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196 (1952).

The statute of frauds is an affirmative defense and must be pleaded. Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820 (1960).

An oral contract to convey or devise real property may be enforced unless the party to be charged takes advantage of the statute of frauds by pleading it. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962).

Motions to Dismiss or for Judgment on the Pleadings. - To support a claim for breach of a lease, a plaintiff must allege sufficient facts to show the existence of a valid contract and breach of the terms of that contract. However, where a claim implicates the enforceability of a contract, rather than its underlying validity, a motion to dismiss or for judgment on the pleadings may not be warranted - for example, in cases where one party attempts to use the North Carolina statute of frauds, G.S. 22-2, as an affirmative defense pursuant to G.S. 1A-1, N.C. R. Civ. P. 8(c). Walter v. Freeway Foods, Inc. (In re Freeway Foods of Greensboro, Inc.), 467 B.R. 853 (Bankr. M.D.N.C. 2012).

Because a motion to dismiss under G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) is a motion on the pleadings, alleging an agreement and breach of that agreement was sufficient to state a claim, regardless of whether the agreement was invalid under the statute of frauds, G.S. 22-2; moreover, the statute of frauds did not bar other claims that arose in connection with the voidable contract. Holloway v. Holloway, 221 N.C. App. 156, 726 S.E.2d 198 (2012).

When a tenant enters into possession under an invalid lease and tenders rent which is accepted by the landlord, a periodic tenancy is created, the period being determined by the interval between rent payments. Kent v. Humphries, 303 N.C. 675, 281 S.E.2d 43 (1981), overruling line of cases represented by Mauney v. Norvell, 179 N.C. 628, 103 S.E. 372 (1920); Barbee v. Lamb, 225 N.C. 211, 34 S.E.2d 65 (1945), and Davis v. Lovick, 226 N.C. 252, 37 S.E.2d 680 (1946), to the extent that they are inconsistent.

Statute May Be Relied on Under General Issue or General Denial. - A party may rely on the statute of frauds under the general issue or a general denial. Luton v. Badham, 127 N.C. 96, 37 S.E. 143 (1900); Winders v. Hill, 144 N.C. 614, 57 S.E. 456 (1907); Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301 (1939).

It is settled law that a party may rely on the statute of frauds under a general denial. Clapp v. Clapp, 241 N.C. 281, 85 S.E.2d 153 (1954); Riggs v. Anderson, 260 N.C. 221, 132 S.E.2d 312 (1963).

Denial that an alleged oral agreement to devise real property was ever made invokes the statute of frauds as effectively as if it had been expressly pleaded. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524 (1957); Hunt v. Hunt, 261 N.C. 437, 135 S.E.2d 195 (1964).

A denial of the alleged contract suffices to require compliance with this section if plaintiff is to recover on the contract alleged. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962).

A defense of the statute of frauds may be taken advantage of by general denial. Riggs v. Anderson, 260 N.C. 221, 132 S.E.2d 312 (1963).

A denial of the contract as alleged is equivalent to a plea of the statute. McCall v. Textile Ind. Inst., 189 N.C. 775, 128 S.E. 349 (1925); Ebert v. Disher, 216 N.C. 36, 3 S.E.2d 301, petition for rehearing allowed in part and dismissed in part, 216 N.C. 546, 5 S.E.2d 716 (1939); Wilson v. Lineberger, 88 N.C. 416 (1883); 90 N.C. 180 (1884); Ford v. Vandyke, 33 N.C. 227 (1850).

In a suit to enforce specific performance of an oral contract to convey land, the denial of the contract in the answer raises the defense of the statute of frauds. Grady v. Faison, 224 N.C. 567, 31 S.E.2d 760 (1944).

In an action on a contract to convey land, the defense being that the contract is not in writing as required by this section, the parties sought to be charged may simply deny the contract or plead the statute of frauds, or they may do both, and if either plea is made good, the contract cannot be enforced. Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652 (1945).

Denial of the contract as alleged is sufficient to raise the defense of the statute of frauds, since it places the burden upon plaintiff of establishing the contract by competent evidence, and if the contract be within the statute, the writing itself is the only competent evidence to prove its existence. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948); Shepherd v. Duke Power Co., 140 F. Supp. 27 (M.D.N.C. 1956).

But see Curtis v. Piedmont Lumber & Mining Co., 109 N.C. 401, 13 S.E. 944 (1891), where it is held that in an action on a contract for lumber the defendant in order to avail himself of the defense of the statute of frauds should plead it specifically.

Defendant's general denial of the alleged contract invoked the statute of frauds as effectively as if it had been expressly pleaded and thereby imposed upon plaintiff the burden of showing a written contract sufficient to comply with its requirements. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

The statute of frauds cannot be taken advantage of by demurrer, since that admits the contract. The contract is valid and binding unless the invalidity, by reason of the statute, is set up by the answer. Hemmings v. Doss, 125 N.C. 400, 34 S.E. 511 (1899); Stevens v. Midyette, 161 N.C. 323, 77 S.E. 243 (1913); Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196 (1952).

The provisions of this section may not be taken advantage of by demurrer. McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617 (1950); Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820 (1960).

A party who claims protection from the statute must take affirmative action. He cannot avail himself of its provisions by demurrer. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

The defense of the statute of frauds to an oral agreement to secure a note by a mortgage on real estate cannot be raised by demurrer. McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568 (1955).

Procedurally, the defense of the statute of frauds cannot be taken advantage of by demurrer; it can only be raised by answer. This may be done in either of two ways: The defendant may plead the statute, in which case when it develops on the trial that the contract is in parol, it must be declared invalid; or the defendant may enter a general denial, and on trial may object to the parol evidence to establish the contract, which will be equally fatal to the maintenance of the action. Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619 (1945).

Proving Contract Required to Be in Writing. - A contract which the law requires to be in writing can be proved only by the writing itself, not as the best but as the only admissible evidence of its existence. Severe v. Penny, 48 N.C. App. 730, 269 S.E.2d 760 (1980).

Where a plaintiff claimed breach of a contract to convey certain real property, the defendant was entitled to summary judgment because the plaintiff produced no writing reflecting any such contract. Anderson v. Brokers Inc. (In re Brokers, Inc.), 363 B.R. 458 (Bankr. M.D.N.C. 2007).

When Statute Is Pleaded, Parol Evidence Is Incompetent. - When the statute of frauds is specifically pleaded, testimony of a contract or promise to lease land exceeding in duration three years from making thereof, resting entirely in parol, is incompetent. Wright v. Allred, 226 N.C. 113, 37 S.E.2d 107 (1946).

Parol evidence is incompetent to establish an entire contract to convey land, and summary judgment was properly entered for defendants in an action for specific performance of an alleged contract to convey land where plaintiffs were unable to produce a written contract or any written memorandum of a contract to convey signed by the parties to be charged. Severe v. Penny, 48 N.C. App. 730, 269 S.E.2d 760 (1980).

Parol Evidence Competent When Description Latently Ambiguous. - Where a description is latently ambiguous plaintiff may offer evidence, parol and other, with reference to extrinsic matter tending to identify the property, and defendant may offer such evidence with reference thereto tending to show impossibility of identification, i.e., ambiguity. Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, cert. denied, 292 N.C. 730, 235 S.E.2d 784 (1977).

But parol evidence cannot vary unambiguous terms of a written contract to convey real property. McCay v. Morris, 46 N.C. App. 791, 266 S.E.2d 5 (1980).

Testimony tending to show an oral agreement in direct conflict with the deed is incompetent. Rourk v. Brunswick County, 46 N.C. App. 795, 266 S.E.2d 401 (1980).

Use of Extrinsic Evidence to Show Connection Between Documents. - Although, generally, extrinsic evidence is not allowed in this State to show the connection between two documents, once the connection is shown to exist, extrinsic evidence is admissible to explain or refute identification of the land therein described. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Where contract explicitly referred to land survey, reliance upon extrinsic evidence to show connection was unnecessary. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, cert. denied, 311 N.C. 755, 321 S.E.2d 133 (1984).

Defendant's failure to object to parol evidence offered to show the existence of the contract is not a waiver of his defense of the statute of frauds, a fortiori if the evidence admitted without objection does not tend to show the existence of the contract but tends only to support a recovery on implied assumpsit, since the denial of the contract casts the burden on plaintiff to establish his cause of action by legal evidence. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561 (1948).

Where the pleadings raise the question of the statute of frauds, that defense is not waived by a failure to object to the parol evidence on the trial. Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

Defendant's failure to object to testimony as to an oral contract does not waive the defense of the statute. Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970).

Burden of Showing Proper Memorandum. - In a suit to enforce specific performance of a written memorandum allegedly given for the sale of a house and lot, the burden was on the plaintiff to show that the memorandum was executed in compliance with the statute of frauds. Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833 (1956).

Evidence to Show Husband's Authority to Act as Wife's Agent. - Where plaintiffs alleged and defendants denied that plaintiff entered into a binding contract with both defendants, plaintiffs were free to offer such evidence as they might have to show that the husband-defendant was authorized by his wife to act as her agent to contract to sell the lands belonging to both as tenants by the entirety. There was no necessity that plaintiffs allege that the contract was executed by the feme defendant through an agent. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).

Variance from Terms of Writing. - Where plaintiff's attempted proof constituted an essential variance and departure from the terms of the written memorandum, he was not entitled to specific performance or damages in the face of defendant's plea of the statute of frauds. Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 152 S.E.2d 85 (1967).

Record on Appeal. - Where upon appeal, the insufficiency of letters to constitute a valid contract under this section is sought to be raised, the contents of the letters must appear upon the record. Layton v. Godwin, 186 N.C. 312, 119 S.E. 495 (1923).

Issues as to title of land cannot be shown by parol. Cox v. Ward, 107 N.C. 507, 12 S.E. 379 (1890); Presnell v. Garrison, 122 N.C. 595, 29 S.E. 839 (1898).

Discharge by Matter in Pais. - A written contract for the sale of land can be discharged by matter in pais. Miller v. Pierce, 104 N.C. 389, 10 S.E. 554 (1889).

Doctrine of Equitable Estoppel. - When faced with oral agreements involving real property interests, courts limit the application of the equitable estoppel doctrine to situations where the party seeking to invoke the statute of frauds, G.S. 22-2, has engaged in plain, clear and deliberate fraud. B & F Slosman v. Sonopress, Inc., 148 N.C. App. 81, 557 S.E.2d 176 (2001), cert. denied, 355 N.C. 283, 560 S.E.2d 795 (2002).

Where Complaint Alleges Consummated Agreement or Estoppel. - Where, in lessor's action for possession of the premises, the allegations of the complaint are sufficient, liberally construed, to allege a consummated parol agreement by lessee to surrender the premises or equitable matters in pais sufficient to raise the question of estoppel of lessee and those claiming under him from denying the termination of the lease, lessor is entitled to show facts establishing such allegations, and judgment dismissing the action on the ground that the parol agreement to surrender the lease came within the statute of frauds and was void as a matter of law is error. Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197 (1958).

§ 22-3: Repealed by Session Laws 1995, c. 379, s. 15.

§ 22-4. Promise to revive debt of bankrupt.

No promise to pay a debt discharged by any decree of a court of competent jurisdiction, in any proceeding in bankruptcy, shall be received in evidence unless such promise is in writing and signed by the party to be charged therewith.

History

(1899, c. 57; Rev., s. 978; C.S., s. 990.)

Legal Periodicals. - For possible construction of this section, see 13 N.C.L. Rev. 60 (1935).

CASE NOTES

Whether this section is applicable to a promise made subsequent to the filing of a petition in bankruptcy but before the order of discharge is entered, quaere. Westall v. Jackson, 218 N.C. 209, 10 S.E.2d 674 (1940).

Cited in Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616 (1985).

§ 22-5. Commercial loan commitments.

No commercial loan commitment by a bank, savings and loan association, or credit union for a loan in excess of fifty thousand dollars ($50,000) shall be binding unless the commitment is in writing and signed by the party to be bound. As used in this section, the term "commercial loan commitment" means an offer, agreement, commitment, or contract to extend credit primarily for business or commercial purposes and does not include charge or credit card accounts, personal lines of credit, overdrafts, or any other consumer account. Offers, agreements, commitments, or contracts to extend credit primarily for aquaculture, agricultural, or farming purposes are specifically exempted from the provisions of this section.

History

(1989, c. 678.)

Legal Periodicals. - For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

Statute Triggered. - Requests were for take-out loans of $ 460,000 and $ 797,000, well in excess of the $50,000 limit to trigger the statute of frauds; any commitment defendant would have made to provide take-out loans in excess of $ 50,000 was required to be in writing and signed by the parties, and plaintiff had not produced any such writing nor alleged such a writing existed. French Broad Place, LLC v. Asheville Sav. Bank, S.S.B., 259 N.C. App. 769, 816 S.E.2d 886 (2018).

Qualification as Commercial Loan Commitment. - Both the 2002 and 2007 promissory notes qualified as a commercial loan commitment exceeding $ 50,000, given that the bank loaned $ 260,000 and $ 150,000 under the notes. Macon Bank, Inc. v. Gleaner, 240 N.C. App. 46, 770 S.E.2d 114 (2015).

Oral Modification. - Because both promissory notes fell within the statute of frauds, an alleged subsequent oral modification also fell within the statute of frauds and was therefore unenforceable, and an affidavit did not constitute evidence of accord and satisfaction. Macon Bank, Inc. v. Gleaner, 240 N.C. App. 46, 770 S.E.2d 114 (2015).

Unclean hands doctrine did not bar a mortgagee's reformation claim, based on mortgagees' alleged oral statements to mortgagors, because (1) the statute of frauds barred such statements, and, (2) if the mortgagee could not equitably assert the statute of frauds, the statements were irrelevant to reformation. Nationstar Mortg., LLC v. Dean, 261 N.C. App. 375, 820 S.E.2d 854 (2018).

Equitable Estoppel. - Because defendants proffered no evidence of fraud and the alleged oral modification involved a real property interest, the defense of equitable estoppel could not override the statute of frauds. Macon Bank, Inc. v. Gleaner, 240 N.C. App. 46, 770 S.E.2d 114 (2015).