§ 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

Analysis

• 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 N.C. LEXIS 532 (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 N.C. App. LEXIS 3187 (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. 224, 2 L. Ed. 603, 1808 U.S. LEXIS 54 (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 N.C. LEXIS 326 (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 N.C. App. LEXIS 2842 (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 N.C. App. LEXIS 221 (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 N.C. App. LEXIS 55 (2010).

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 N.C. LEXIS 63 (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 N.C. LEXIS 69 (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 N.C. LEXIS 361 (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 N.C. LEXIS 361 (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 U.S. LEXIS 2538 (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 N.C. LEXIS 7 (1924). See Sharp v. Tatham, 205 N.C. 827 , 170 S.E. 654, 1933 N.C. LEXIS 608 (1933); Gennett v. Lyerly, 207 N.C. 201 , 176 S.E. 275, 1934 N.C. LEXIS 419 (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 N.C. LEXIS 369 (1960); Burlington Indus., Inc. v. Foil, 284 N.C. 740 , 202 S.E.2d 591, 1974 N.C. LEXIS 1339 (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 N.C. LEXIS 658 (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 N.C. LEXIS 521 (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, 1950 U.S. App. LEXIS 2959 (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 N.C. App. LEXIS 1604 (1973), aff'd, 284 N.C. 740 , 202 S.E.2d 591, 1974 N.C. LEXIS 1339 (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 N.C. LEXIS 1339 (1974); McKenzie Supply Co. v. Motel Dev. Unit 2, Inc., 32 N.C. App. 199, 231 S.E.2d 201, 1977 N.C. App. LEXIS 1882 (1977); Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702, 1980 N.C. App. LEXIS 2979 (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 N.C. App. LEXIS 1882 (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 N.C. LEXIS 16 (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 N.C. LEXIS 163 (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 N.C. LEXIS 5 (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 N.C. LEXIS 430 (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, 1950 U.S. App. LEXIS 2959 (4th Cir. 1950); Burlington Indus., Inc. v. Foil, 284 N.C. 740 , 202 S.E.2d 591, 1974 N.C. LEXIS 1339 (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 U.S. LEXIS 2538 (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 N.C. LEXIS 25 (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 N.C. LEXIS 163 (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 N.C. LEXIS 231 (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 N.C. LEXIS 66 (1911); Warren v. White, 251 N.C. 729 , 112 S.E.2d 522, 1960 N.C. LEXIS 369 (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 N.C. LEXIS 144 (1879); Garrett Co. v. Hamill, 131 N.C. 57 , 42 S.E. 448, 1902 N.C. LEXIS 231 (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 N.C. LEXIS 1339 (1974); Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702, 1980 N.C. App. LEXIS 2979 (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 N.C. LEXIS 1339 (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 N.C. App. LEXIS 1930 (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 N.C. App. LEXIS 1930 (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 N.C. App. LEXIS 2485 (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 N.C. App. LEXIS 1084 (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 N.C. LEXIS 7 (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, 1950 U.S. App. LEXIS 2959 (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 N.C. LEXIS 50 (1910). But see Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410, 1973 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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 N.C. LEXIS 658 (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 N.C. LEXIS 70 (1856); Standard Supply Co. v. Person, 154 N.C. 456 , 70 S.E. 745, 1911 N.C. LEXIS 294 (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 N.C. LEXIS 562 (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 N.C. LEXIS 658 (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, 1936 N.C. LEXIS 456 (1936).

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 N.C. App. LEXIS 1014 (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 N.C. App. LEXIS 1014 (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 N.C. LEXIS 658 (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 N.C. LEXIS 57 (1850); Stanly v. Hendricks, 35 N.C. 86 , 1851 N.C. LEXIS 118 (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 N.C. LEXIS 281 (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 N.C. LEXIS 298 (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 N.C. LEXIS 337 (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 N.C. LEXIS 22 (1908); Hickory Novelty Co. v. Andrews, 188 N.C. 59 , 123 S.E. 314, 1924 N.C. LEXIS 7 (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 N.C. LEXIS 104 (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 N.C. LEXIS 419 (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 N.C. LEXIS 255 (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 N.C. LEXIS 126 (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 N.C. LEXIS 535 (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, 1927 U.S. App. LEXIS 2611 (4th Cir. 1927); Warren v. White, 251 N.C. 729 , 112 S.E.2d 522, 1960 N.C. LEXIS 369 (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 N.C. LEXIS 633 (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 N.C. LEXIS 617 (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, 1936 N.C. LEXIS 456 (1936).

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 N.C. LEXIS 307 (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 N.C. LEXIS 387 (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 N.C. LEXIS 419 (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 N.C. LEXIS 1 (1837); Ashford v. Robinson, 30 N.C. 114 , 1847 N.C. LEXIS 1 46 (1847); Rowland v. Rorke, 49 N.C. 337 , 1857 N.C. LEXIS 92 (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 N.C. LEXIS 430 (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 N.C. LEXIS 70 (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 N.C. LEXIS 1291 (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, 1980 N.C. App. LEXIS 2578 , cert. denied, 300 N.C. 197 , 269 S.E.2d 617, 1980 N.C. LEXIS 1550 (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 N.C. App. LEXIS 2979 (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 N.C. App. LEXIS 2979 (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 N.C. App. LEXIS 3684 (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., 2012 U.S. Dist. LEXIS 177456 (W.D.N.C. Dec. 13, 2012), aff'd in part, vacated in part, 612 Fed. Appx. 158, 2015 U.S. App. LEXIS 7425 (4th Cir. 2015).

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 N.C. App. LEXIS 2318 (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, 2011 Bankr. LEXIS 4408 (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 N.C. App. LEXIS 2913 (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 N.C. App. LEXIS 481 (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 N.C. App. LEXIS 1930 (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

Analysis

• 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. Winbury v. Koonce, 83 N.C. 351 , 1880 N.C. LEXIS 77 (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 N.C. LEXIS 237 (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, 1944 N.C. LEXIS 423 (1944).

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, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. LEXIS 461 (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 N.C. LEXIS 609 (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 N.C. App. LEXIS 1597 (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 N.C. LEXIS 461 (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 N.C. LEXIS 428 (1946).

This section applies to executory and not executed contracts. Choat v. Wright, 13 N.C. 289 , 1830 N.C. LEXIS 40 (1830); Bailey v. Bishop, 152 N.C. 383 , 67 S.E. 968, 1910 N.C. LEXIS 285 (1910); Rogers v. Gennett Lumber Co., 154 N.C. 108 , 69 S.E. 788, 1910 N.C. LEXIS 169 (1910); Herndon v. Durham & S.R.R., 161 N.C. 650 , 77 S.E. 683, 1913 N.C. LEXIS 295 (1913); Keith Bros. v. Kennedy, 194 N.C. 784 , 140 S.E. 721, 1927 N.C. LEXIS 215 (1927); Willis v. Willis, 242 N.C. 597 , 89 S.E.2d 152, 1955 N.C. LEXIS 633 (1955); Herring v. Volume Merchandise, Inc., 249 N.C. 221 , 106 S.E.2d 197, 1958 N.C. LEXIS 461 (1958). See Sprinkle v. Ponder, 233 N.C. 312 , 64 S.E.2d 171, 1951 N.C. LEXIS 601 (1951); Dobias v. White, 240 N.C. 680 , 83 S.E.2d 785, 1954 N.C. LEXIS 503 (1954); Hayman v. Stafford, 77 N.C. App. 154, 334 S.E.2d 438, 1985 N.C. App. LEXIS 4047 (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 N.C. LEXIS 215 (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 N.C. App. LEXIS 2134 (1975), rev'd, 289 N.C. 291 , 221 S.E.2d 347, 1976 N.C. LEXIS 1254 (1976).

A wholly unexecuted parol contract to sell land is void. Riggs v. Anderson, 260 N.C. 221 , 132 S.E.2d 312, 1963 N.C. LEXIS 650 (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 N.C. LEXIS 33 (1909); Jones v. Jones, 164 N.C. 320 , 80 S.E. 430, 1913 N.C. LEXIS 54 (1913); Wilson v. Jones, 176 N.C. 205 , 97 S.E. 18, 1918 N.C. LEXIS 220 (1918); Kelly Springfield Tire Co. v. Lester, 192 N.C. 642 , 135 S.E. 778, 1926 N.C. LEXIS 369 (1926); Winner v. Winner, 222 N.C. 414 , 23 S.E.2d 251, 1942 N.C. LEXIS 111 (1942). See also Pittman v. Pittman, 107 N.C. 159 , 12 S.E. 61, 1890 N.C. LEXIS 28 (1890); Cobb v. Edwards, 117 N.C. 244 , 23 S.E. 241, 1895 N.C. LEXIS 54 (1895); Anderson v. Harrington, 163 N.C. 140 , 79 S.E. 426, 1913 N.C. LEXIS 136 (1913); Lutz v. Hoyle, 167 N.C. 632 , 83 S.E. 749, 1914 N.C. LEXIS 184 (1914); Robertson v. Bemis & Vosburgh, 226 F. 828, 1915 U.S. Dist. LEXIS 1194 (D.N.C. 1915); Newby v. Atlantic Coast Realty Co., 182 N.C. 34 , 108 S.E. 323, 1921 N.C. LEXIS 169 (1921); Blue v. Wilmington, 186 N.C. 321 , 119 S.E. 741, 1923 N.C. LEXIS 239 (1923); Cunningham v. Long, 186 N.C. 526 , 120 S.E. 81, 1923 N.C. LEXIS 290 (1923); Peele v. LeRoy, 222 N.C. 123 , 22 S.E.2d 244, 1942 N.C. LEXIS 43 (1942); Taylor v. Addington, 222 N.C. 393 , 23 S.E.2d 318, 1942 N.C. LEXIS 106 (1942); Thompson v. Davis, 223 N.C. 792 , 28 S.E.2d 556, 1944 N.C. LEXIS 275 (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 N.C. LEXIS 279 (1945); Carlisle v. Carlisle, 225 N.C. 462 , 35 S.E.2d 418, 1945 N.C. LEXIS 347 (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 N.C. LEXIS 48 (1848) (dictum); Cloninger v. Summit, 55 N.C. 513 , 1856 N.C. LEXIS 208 (1856); Cousins v. Wall, 56 N.C. 43 , 1856 N.C. LEXIS 220 (1856); Hanff v. Howard, 56 N.C. 440 , 1857 N.C. LEXIS 217 (1857); Shelton v. Shelton, 58 N.C. 292 , 1859 N.C. LEXIS 297 (1859); Cohn v. Chapman, 62 N.C. 92 , 1867 N.C. LEXIS 8 (1867); Cobb v. Edwards, 117 N.C. 244 , 23 S.E. 241, 1895 N.C. LEXIS 54 (1895); Owens v. Williams, 130 N.C. 165 , 41 S.E. 93, 1902 N.C. LEXIS 38 (1902); Sykes v. Boone, 132 N.C. 199 , 43 S.E. 645, 1903 N.C. LEXIS 261 (1903); Avery v. Stewart, 136 N.C. 426 , 48 S.E. 775, 1904 N.C. LEXIS 289 (1904); Anderson v. Harrington, 163 N.C. 140 , 79 S.E. 426, 1913 N.C. LEXIS 136 (1913); Jones v. Jones, 164 N.C. 320 , 80 S.E. 430, 1913 N.C. LEXIS 54 (1913); Lutz v. Hoyle, 167 N.C. 632 , 83 S.E. 749, 1914 N.C. LEXIS 184 (1914); Rush v. McPherson, 176 N.C. 562 , 97 S.E. 613, 1918 N.C. LEXIS 301 (1918); Cunningham v. Long, 186 N.C. 526 , 120 S.E. 81, 1923 N.C. LEXIS 290 (1923); Thompson v. Davis, 223 N.C. 792 , 28 S.E.2d 556, 1944 N.C. LEXIS 275 (1944); Embler v. Embler, 224 N.C. 811 , 32 S.E.2d 619, 1945 N.C. LEXIS 234 (1945); Carlisle v. Carlisle, 225 N.C. 462 , 35 S.E.2d 418, 1945 N.C. LEXIS 347 (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 N.C. LEXIS 165 (1888); Hunt v. Hunt, 261 N.C. 437 , 135 S.E.2d 195, 1964 N.C. LEXIS 506 (1964); Hines v. Tripp, 263 N.C. 470 , 139 S.E.2d 545, 1965 N.C. LEXIS 1307 (1965); Grady v. Faison, 224 N.C. 567 , 31 S.E.2d 760, 1944 N.C. LEXIS 432 (1944); Chason v. Marley, 224 N.C. 844 , 32 S.E.2d 652, 1945 N.C. LEXIS 238 (1945); Jamerson v. Logan, 228 N.C. 540 , 46 S.E.2d 561, 1948 N.C. LEXIS 278 (1948); Shepherd v. Duke Power Co., 140 F. Supp. 27, 1956 U.S. Dist. LEXIS 3409 (D.N.C. 1956).

This section has no application to parol trusts. Hargrave v. King, 40 N.C. 430 , 1848 N.C. LEXIS 48 (1848); Cloninger v. Summit, 55 N.C. 513 , 1856 N.C. LEXIS 208 (1856); Cousins v. Wall, 56 N.C. 43 , 1856 N.C. LEXIS 220 (1856); Hanff v. Howard, 56 N.C. 440 , 1857 N.C. LEXIS 217 (1857); Riggs v. Swann, 59 N.C. 118 , 1860 N.C. LEXIS 27 (1860); Cobb v. Edwards, 117 N.C. 244 , 23 S.E. 241, 1895 N.C. LEXIS 54 (1895); Owens v. Williams, 130 N.C. 165 , 41 S.E. 93, 1902 N.C. LEXIS 38 (1902); Sykes v. Boone, 132 N.C. 199 , 43 S.E. 645, 1903 N.C. LEXIS 261 (1903); Avery v. Stewart, 136 N.C. 426 , 48 S.E. 775, 1904 N.C. LEXIS 289 (1904); Russell v. Wade, 146 N.C. 116 , 59 S.E. 345, 1907 N.C. LEXIS 10 (1907); Anderson v. Harrington, 163 N.C. 140 , 79 S.E. 426, 1913 N.C. LEXIS 136 (1913); Jones v. Jones, 164 N.C. 320 , 80 S.E. 430, 1913 N.C. LEXIS 54 (1913); Brogden v. Gibson, 165 N.C. 16 , 80 S.E. 966, 1914 N.C. LEXIS 207 (1914); Lutz v. Hoyle, 167 N.C. 632 , 83 S.E. 749, 1914 N.C. LEXIS 184 (1914); Boone v. Lee, 175 N.C. 383 , 95 S.E. 659, 1918 N.C. LEXIS 77 (1918); Newby v. Atlantic Coast Realty Co., 182 N.C. 34 , 108 S.E. 323, 1921 N.C. LEXIS 169 (1921); Peele v. LeRoy, 222 N.C. 123 , 22 S.E.2d 244, 1942 N.C. LEXIS 43 (1942); Thompson v. Davis, 223 N.C. 792 , 28 S.E.2d 556, 1944 N.C. LEXIS 27 5 (1944); Embler v. Embler, 224 N.C. 811 , 32 S.E.2d 619, 1945 N.C. LEXIS 234 (1945). See, for example, the language of Shelton v. Shelton, 58 N.C. 292 , 1859 N.C. LEXIS 297 (1859) and Jamerson v. Logan, 228 N.C. 540 , 46 S.E.2d 561, 1948 N.C. LEXIS 278 (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 N.C. App. LEXIS 1850 (1974).

Nor does this section prohibit the establishment by parol evidence. Shelton v. Shelton, 58 N.C. 292 , 1859 N.C. LEXIS 297 (1859); Riggs v. Swann, 59 N.C. 118 , 1860 N.C. LEXIS 27 (1860); Jones v. Jones, 164 N.C. 320 , 80 S.E. 430, 1913 N.C. LEXIS 54 (1913); Thompson v. Davis, 223 N.C. 792 , 28 S.E.2d 556, 1944 N.C. LEXIS 27 5 (1944). And in Thompson v. Davis it is further stated (Thompson v. Davis, 223 N.C. 792 , 28 S.E.2d 556, 1944 N.C. LEXIS 275 (1944)): “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, 1936 N.C. LEXIS 417 (1936).

Thus, parol trusts remain as at common law. Shelton v. Shelton, 58 N.C. 292 , 1859 N.C. LEXIS 297 (1859); Pittman v. Pittman, 107 N.C. 159 , 12 S.E. 61, 1890 N.C. LEXIS 28 (1890); Anderson v. Harrington, 163 N.C. 140 , 79 S.E. 426, 1913 N.C. LEXIS 136 (1913); Lutz v. Hoyle, 167 N.C. 632 , 83 S.E. 749, 1914 N.C. LEXIS 184 (1914); Cunningham v. Long, 186 N.C. 526 , 120 S.E. 81, 1923 N.C. LEXIS 290 (1923); Peele v. LeRoy, 222 N.C. 123 , 22 S.E.2d 244, 1942 N.C. LEXIS 43 (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 N.C. LEXIS 38 (1902) (prior parol declaration and land conveyed pursuant thereto); Sykes v. Boone, 132 N.C. 199 , 43 S.E. 645, 1903 N.C. LEXIS 261 (1903); Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616, 1985 N.C. App. LEXIS 4286 (1985); Howard-Green Elec. Co. v. Chaney & James Constr. Co., 12 N.C. App. 63, 182 S.E.2d 601, 1971 N.C. App. LEXIS 1285 (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 N.C. LEXIS 57 (1896).

For cases stating only that the declaration must be contemporaneous, see Riggs v. Swann, 59 N.C. 118 , 1860 N.C. LEXIS 27 (1860) (“at the time the legal title passes”); Pittman v. Pittman, 107 N.C. 159 , 12 S.E. 61, 1890 N.C. LEXIS 28 (1890); Blackburn v. Blackburn, 109 N.C. 488 , 13 S.E. 937, 1891 N.C. LEXIS 250 (1891); Hamilton v. Buchanan, 112 N.C. 463 , 17 S.E. 159, 1893 N.C. LEXIS 236 (1893) (“at the time of the sale”); Peele v. LeRoy, 222 N.C. 123 , 22 S.E.2d 244, 1942 N.C. LEXIS 43 (1942). But see Cobb v. Edwards, 117 N.C. 244 , 23 S.E. 241, 1895 N.C. LEXIS 54 (1895) (and) Embler v. Embler, 224 N.C. 811 , 32 S.E.2d 619, 1945 N.C. LEXIS 234 (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 N.C. LEXIS 57 (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 N.C. LEXIS 684 (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 N.C. LEXIS 33 (1909); Jones v. Jones, 164 N.C. 320 , 80 S.E. 430, 1913 N.C. LEXIS 54 (1913); Colonial Trust Co. v. Sterchie Bros., 169 N.C. 21 , 85 S.E. 40, 1915 N.C. LEXIS 137 (1915); Campbell v. Sigmon, 170 N.C. 348 , 87 S.E. 116, 1915 N.C. LEXIS 401 (1915); Walters v. Walters, 171 N.C. 312 , 88 S.E. 438, 1916 N.C. LEXIS 72 (1916); Walters v. Walters, 172 N.C. 328 , 90 S.E. 304, 1916 N.C. LEXIS 295 (1916); Chilton v. Smith, 180 N.C. 472 , 105 S.E. 1, 1920 N.C. LEXIS 115 (1920); Swain v. Goodman, 183 N.C. 531 , 112 S.E. 36, 1922 N.C. LEXIS 310 (1922); Blue v. Wilmington, 186 N.C. 321 , 119 S.E. 741, 1923 N.C. LEXIS 239 (1923); Williams v. McRackan, 186 N.C. 381 , 119 S.E. 746, 1923 N.C. LEXIS 253 (1923) (concurring opinion by Clark, C.J., referring to Gaylord v. Gaylord, 150 N.C. 222 , 63 S.E. 1028, 1909 N.C. LEXIS 33 (1909), 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 N.C. LEXIS 369 (1926); Wilson v. Crab Orchard Dev. Co., 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50, 1969 N.C. App. LEXIS 1403 (1969), aff'd, 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970); Estridge v. Denson, 270 N.C. 556 , 155 S.E.2d 190, 1967 N.C. LEXIS 1388 (1967); Estridge v. Denson, 270 N.C. 556 , 155 S.E.2d 190, 1967 N.C. LEXIS 1388 (1967); Estridge v. Denson, 270 N.C. 556, 155 S.E.2d 190, 1967 N.C. LEXIS 1388 (1967); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50, 1969 N.C. App. LEXIS 1403 (1969), aff'd, 276 N.C. 198, 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970); Pritchard v. Mitchell, 139 N.C. 54 , 51 S.E. 783, 1905 N.C. LEXIS 93 (1905); Cooper v. McKinnon, 122 N.C. 447 , 29 S.E. 417, 1898 N.C. LEXIS 283 (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 N.C. LEXIS 33 (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 N.C. LEXIS 54 (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 N.C. LEXIS 275 (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 N.C. LEXIS 401 (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 N.C. LEXIS 115 (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 N.C. LEXIS 17 6 (1856) (agreement void under the statute of frauds); Bonham v. Craig, 80 N.C. 224 , 1879 N.C. LEXIS 59 (1879); Campbell v. Sigmon, 170 N.C. 348 , 87 S.E. 116, 1915 N.C. LEXIS 401 (1915); Newton v. Clark, 174 N.C. 393 , 93 S.E. 951, 1917 N.C. LEXIS 101 (1917); Chilton v. Smith, 180 N.C. 472 , 105 S.E. 1, 1920 N.C. LEXIS 115 (1920); Swain v. Goodman, 183 N.C. 531 , 112 S.E. 36, 1922 N.C. LEXIS 310 (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 N.C. LEXIS 313 (1941); Ebert v. Disher, 216 N.C. 36 , 3 S.E.2d 301, 1939 N.C. LEXIS 103 (1939); Powell Bros. v. McMullan Lumber Co., 153 N.C. 52 , 68 S.E. 926, 1910 N.C. LEXIS 17 (1910); Wilson v. Crab Orchard Dev. Co., 5 N.C. App. 600, 169 S.E.2d 50, 1969 N.C. App. LEXIS 1403 (1969), aff'd, 276 N.C. 198 , 171 S.E.2d 873, 1970 N.C. LEXIS 665 (1970); Pritchard v. Mitchell, 139 N.C. 54 , 51 S.E. 783, 1905 N.C. LEXIS 93 (1905); Cooper v. McKinnon, 122 N.C. 447 , 29 S.E. 417, 1898 N.C. LEXIS 283 (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 N.C. App. LEXIS 2909 (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 N.C. App. LEXIS 1767 (1975), aff'd in part and rev'd in part, 291 N.C. 630 , 231 S.E.2d 607, 1977 N.C. LEXIS 1227 (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 N.C. LEXIS 276 (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 N.C. LEXIS 544 (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 N.C. App. LEXIS 2521 , aff'd, 297 N.C. 32 , 253 S.E.2d 264, 1979 N.C. LEXIS 1120 (1978).

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 N.C. LEXIS 1290 (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 N.C. LEXIS 628 (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 N.C. LEXIS 1101 (1972).

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 N.C. LEXIS 815 (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 N.C. App. LEXIS 1054 (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 N.C. LEXIS 1168 (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 N.C. LEXIS 380 (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, 1963 U.S. Dist. LEXIS 7538 (E.D.N.C. 1963), aff'd, 326 F.2d 971, 1964 U.S. App. LEXIS 6646 (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 N.C. LEXIS 484 (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 N.C. LEXIS 353 (1938), limited, Lankford v. Wright, 347 N.C. 115 , 489 S.E.2d 604, 1997 N.C. LEXIS 594 (1997).

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 N.C. LEXIS 13 (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 N.C. LEXIS 13 (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 N.C. LEXIS 354 (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 Ind. Inst., 189 N.C. 775 , 128 S.E. 349, 1925 N.C. LEXIS 399 (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 N.C. LEXIS 278 (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 N.C. LEXIS 110 (1935). See also Dupree v. Moore, 227 N.C. 626 , 44 S.E.2d 37, 1947 N.C. LEXIS 495 (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 N.C. LEXIS 402 (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 N.C. LEXIS 31 (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 N.C. LEXIS 348 (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 N.C. App. LEXIS 1250 (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 N.C. App. LEXIS 2771 (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 N.C. App. LEXIS 3694 (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 N.C. App. LEXIS 1249 (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 N.C. App. LEXIS 817 (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 N.C. App. LEXIS 930 (2012).

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 N.C. LEXIS 28 (1911); Lewis v. Allred, 249 N.C. 486 , 106 S.E.2d 689, 1959 N.C. LEXIS 367 (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 N.C. App. LEXIS 2053 (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 N.C. LEXIS 401 (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 N.C. LEXIS 581 (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 N.C. LEXIS 461 (1958).

An easement is an interest in land and must be in writing. Shepherd v. Duke Power Co., 140 F. Supp. 27, 1956 U.S. Dist. LEXIS 3409 (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, 1977 N.C. App. LEXIS 1932 (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 N.C. App. LEXIS 4366 (1985).

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 N.C. App. LEXIS 4366 (1985).

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 N.C. App. LEXIS 4366 (1985).

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 N.C. LEXIS 209 (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 N.C. LEXIS 169 (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 N.C. LEXIS 169 (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 N.C. App. LEXIS 3203 (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 N.C. App. LEXIS 3203 (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 N.C. LEXIS 45 (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 N.C. LEXIS 477 (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 N.C. LEXIS 101 (1830); Medlin v. Steele, 75 N.C. 154 , 1876 N.C. LEXIS 230 (1876); Fort v. Allen, 110 N.C. 183 , 14 S.E. 685, 1892 N.C. LEXIS 31 (1892); Rhea v. Craig, 141 N.C. 602 , 54 S.E. 408, 1906 N.C. LEXIS 145 (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 N.C. LEXIS 446 (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 N.C. LEXIS 316 (1943); Clapp v. Clapp, 241 N.C. 281 , 85 S.E.2d 153, 1954 N.C. LEXIS 408 (1954); Pickelsimer v. Pickelsimer, 257 N.C. 696 , 127 S.E.2d 557, 1962 N.C. LEXIS 609 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241 , 152 S.E.2d 85, 1967 N.C. LEXIS 1051 (1967). See Neal v. Wachovia Bank & Trust Co., 224 N.C. 103 , 29 S.E.2d 206, 1944 N.C. LEXIS 302 (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 N.C. LEXIS 460 (1958); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430, 1971 N.C. App. LEXIS 1250 (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 N.C. LEXIS 684 (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 N.C. LEXIS 609 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241 , 152 S.E.2d 85, 1967 N.C. LEXIS 1051 (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 N.C. LEXIS 561 (1933). See also Coley v. Dalrymple, 225 N.C. 67 , 33 S.E.2d 477, 1945 N.C. LEXIS 261 (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 N.C. App. LEXIS 2603 (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 N.C. App. LEXIS 900 (2018).

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 N.C. LEXIS 1051 (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 N.C. LEXIS 1168 (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 N.C. LEXIS 278 (1948); Humphrey v. Faison, 247 N.C. 127 , 100 S.E.2d 524, 1957 N.C. LEXIS 684 (1957); Pickelsimer v. Pickelsimer, 257 N.C. 696 , 127 S.E.2d 557, 1962 N.C. LEXIS 609 (1962); Mansour v. Rabil, 277 N.C. 364 , 177 S.E.2d 849, 1970 N.C. LEXIS 621 (1970); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430, 1971 N.C. App. LEXIS 1250 (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 N.C. LEXIS 348 (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 N.C. LEXIS 427 (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 N.C. LEXIS 118 (1840).

Fruits on trees cannot be reserved by the vendor by a parol agreement. Flynt v. Conrad, 61 N.C. 190 , 1867 N.C. LEXIS 86 (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, 1958 U.S. Dist. LEXIS 3661 (D.N.C. 1958), aff'd, 264 F.2d 795, 1959 U.S. App. LEXIS 4189 (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 N.C. LEXIS 361 (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 N.C. App. LEXIS 28 (1988).

Standing Timber. —

A contract conveying standing timber is a contract concerning realty. Mizell v. Burnett, 49 N.C. 249 , 1857 N.C. LEXIS 64 (1857); Drake v. Howell, 133 N.C. 162 , 45 S.E. 539, 1903 N.C. LEXIS 35 (1903); Ward v. Gay, 137 N.C. 397 , 49 S.E. 884, 1905 N.C. LEXIS 183 (1905); Ives v. Atlantic & N.C.R.R., 142 N.C. 131 , 55 S.E. 74, 1906 N.C. LEXIS 229 (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 N.C. LEXIS 511 (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 N.C. LEXIS 355 (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 N.C. LEXIS 223 (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 N.C. LEXIS 103 (1896); Sterne v. Benbow, 151 N.C. 460 , 66 S.E. 445, 1909 N.C. LEXIS 299 (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 N.C. LEXIS 218 (1885).

Equitable Estates. —

A parol contract of sale of an equitable estate in land is void. Holmes v. Holmes, 86 N.C. 205 , 1882 N.C. LEXIS 175 (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 N.C. LEXIS 227 (1899); Stevens v. Turlington, 186 N.C. 191 , 119 S.E. 210, 1923 N.C. LEXIS 204 (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 N.C. LEXIS 204 (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, 1971 N.C. App. LEXIS 1695 , cert. denied, 278 N.C. 702 , 181 S.E.2d 603, 1971 N.C. LEXIS 1033 (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, 2008 U.S. Dist. LEXIS 97293 (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 N.C. LEXIS 402 (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 N.C. LEXIS 382 (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 N.C. LEXIS 294 (1945).

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 N.C. LEXIS 114 (1875); Mauney v. Norvell, 179 N.C. 628 , 103 S.E. 372, 1920 N.C. LEXIS 304 (1920).

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, 1929 N.C. LEXIS 425 (1929).

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 N.C. LEXIS 428 (1946).

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 N.C. LEXIS 245 (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 N.C. LEXIS 461 (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 N.C. LEXIS 461 (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 N.C. LEXIS 461 (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 N.C. LEXIS 360 (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 N.C. LEXIS 282 (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 N.C. App. LEXIS 1068 (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 N.C. App. LEXIS 2138 (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 N.C. App. LEXIS 3240 (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 N.C. LEXIS 342 (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 N.C. LEXIS 14 (1836); Ebert v. Disher, 216 N.C. 36 , 3 S.E.2d 301, 1939 N.C. LEXIS 103 (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 N.C. LEXIS 58 (1833).

Judgment. —

The statute of frauds does not require that a judgment constituting a lien on land should be assigned by a written instrument. Winbury v. Koonce, 83 N.C. 351 , 1880 N.C. LEXIS 77 (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 N.C. App. LEXIS 2771 (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 N.C. LEXIS 245 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. LEXIS 315 (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 N.C. LEXIS 2 (1876); Hall v. Misenheimer, 137 N.C. 183 , 49 S.E. 104, 1904 N.C. LEXIS 343 (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, 1939 N.C. LEXIS 388 (1939); Elliott v. Owen, 244 N.C. 684 , 94 S.E.2d 833, 1956 N.C. LEXIS 500 (1956); Carr v. Good Shepherd Home, Inc., 269 N.C. 241 , 152 S.E.2d 85, 1967 N.C. LEXIS 1051 (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 N.C. LEXIS 608 (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 N.C. LEXIS 27 (1877); Farmer v. Batts, 83 N.C. 387 , 1880 N.C. LEXIS 83 (1880); Thornburg v. Masten, 88 N.C. 293 , 1883 N.C. LEXIS 72 (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 N.C. LEXIS 500 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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, 1981 N.C. App. LEXIS 2159 , aff'd in part, modified, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. App. LEXIS 2908 (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 N.C. App. LEXIS 217 (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, 1982 N.C. App. LEXIS 2599 (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, 1984 N.C. App. LEXIS 2992 (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 N.C. App. LEXIS 2651 (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 N.C. App. LEXIS 1073 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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, 1982 N.C. App. LEXIS 2599 (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 N.C. App. LEXIS 1274 (2001).

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 N.C. App. LEXIS 1142 (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, 1984 N.C. App. LEXIS 2992 (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 N.C. LEXIS 427 (1962); Rape v. Lyerly, 287 N.C. 601 , 215 S.E.2d 737, 1975 N.C. LEXIS 1168 (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 N.C. LEXIS 427 (1962); Rape v. Lyerly, 287 N.C. 601 , 215 S.E.2d 737, 1975 N.C. LEXIS 1168 (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., 2006 U.S. Dist. LEXIS 27231 (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 N.C. LEXIS 271 (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 N.C. LEXIS 608 (1964); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410, 1973 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. App. LEXIS 689 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. LEXIS 608 (1964); Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, 1977 N.C. App. LEXIS 1932 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. LEXIS 608 (1964); Prentice v. Roberts, 32 N.C. App. 379, 232 S.E.2d 286, 1977 N.C. App. LEXIS 1932 (1977); Taefi v. Stevens, 53 N.C. App. 579, 281 S.E.2d 435, 1981 N.C. App. LEXIS 2709 (1981), modified, 305 N.C. 291 , 287 S.E.2d 898, 1982 N.C. LEXIS 1266 (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 N.C. LEXIS 1290 (1976); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. App. LEXIS 2908 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. LEXIS 1290 (1976).

Patently ambiguous contract is void under the statute of frauds. House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. LEXIS 1290 (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 N.C. App. LEXIS 2908 (1983); House v. Stokes, 66 N.C. App. 636, 311 S.E.2d 671, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. LEXIS 1290 (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, 1977 N.C. App. LEXIS 1932 (1977); Taefi v. Stevens, 53 N.C. App. 579, 281 S.E.2d 435, 1981 N.C. App. LEXIS 2709 (1981), modified, 305 N.C. 291 , 287 S.E.2d 898, 1982 N.C. LEXIS 1266 (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 N.C. App. LEXIS 2908 (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 N.C. App. LEXIS 2908 (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, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. App. LEXIS 1192 (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 N.C. App. LEXIS 690 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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, 1977 N.C. App. LEXIS 1932 (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, 1977 N.C. App. LEXIS 1932 (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 N.C. LEXIS 608 (1964).

Parol evidence is not admitted to explain patent ambiguities. Brooks v. Hackney, 100 N.C. App. 562, 397 S.E.2d 361, 1990 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. LEXIS 62 (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 N.C. LEXIS 214 (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 N.C. LEXIS 401 (1957); Carlton v. Anderson, 276 N.C. 564 , 173 S.E.2d 783, 1970 N.C. LEXIS 721 (1970); Sheppard v. Andrews, 7 N.C. App. 517, 173 S.E.2d 67, 1970 N.C. App. LEXIS 1724 (1970); Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496, 1970 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 608 (1964); Yaggy v. B.V.D. Co., 7 N.C. App. 590, 173 S.E.2d 496, 1970 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 721 (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 N.C. App. LEXIS 2030 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. LEXIS 289 (1920). See Higdon v. Rice, 119 N.C. 623 , 26 S.E. 256, 1896 N.C. LEXIS 354 (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 N.C. LEXIS 209 (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 N.C. LEXIS 26 (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, 1923 U.S. Dist. LEXIS 1281 (D.N.C. 1923). See also Keith v. Bailey, 185 N.C. 262 , 116 S.E. 729, 1923 N.C. LEXIS 62 (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 N.C. LEXIS 289 (1920); Gilbert v. Wright, 195 N.C. 165 , 141 S.E. 577, 1928 N.C. LEXIS 35 (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 N.C. LEXIS 35 (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 N.C. LEXIS 271 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. App. LEXIS 1081 (1990), rev'd, 329 N.C. 166 , 404 S.E.2d 854, 1991 N.C. LEXIS 422 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. App. LEXIS 3091 (1979), cert. denied, 299 N.C. 328 , 265 S.E.2d 397, 1980 N.C. LEXIS 1002 (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 N.C. App. LEXIS 1787 (1977), cert. denied, 294 N.C. 441 , 241 S.E.2d 843, 1978 N.C. LEXIS 1265 (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 N.C. LEXIS 499 (1951); Powell v. Mills, 237 N.C. 582 , 75 S.E.2d 759, 1953 N.C. LEXIS 701 (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 N.C. LEXIS 53 (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 N.C. LEXIS 1290 (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 N.C. App. LEXIS 1733 (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 N.C. LEXIS 1290 (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 N.C. LEXIS 235 (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, 1953 U.S. App. LEXIS 2997 (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 N.C. LEXIS 1307 (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 N.C. LEXIS 1290 (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 N.C. LEXIS 1290 (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 N.C. LEXIS 1290 (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, 1977 N.C. App. LEXIS 1932 (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, 1977 N.C. App. LEXIS 1932 (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, 1977 N.C. App. LEXIS 1932 (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 N.C. LEXIS 1290 (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 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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 N.C. LEXIS 758 (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 N.C. LEXIS 1051 (1967) (quoting) Burkhead v. Farlow, 266 N.C. 595 , 146 S.E.2d 802, 1966 N.C. LEXIS 1392 , 16 A.L.R.3d 1416 (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 N.C. LEXIS 1051 (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 N.C. LEXIS 608 (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 N.C. LEXIS 367 (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 N.C. LEXIS 621 (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 N.C. App. LEXIS 1250 (1971).

Will Not Sufficient as Memorandum or Note of Contract. —

See McCraw v. Llewellyn, 256 N.C. 213 , 123 S.E.2d 575, 1962 N.C. LEXIS 427 (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 N.C. LEXIS 427 (1962); Hicks v. Hicks, 13 N.C. App. 347, 185 S.E.2d 430, 1971 N.C. App. LEXIS 1250 (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 N.C. LEXIS 331 (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 N.C. LEXIS 1168 (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 N.C. LEXIS 388 (1939); Millikan v. Simmons, 244 N.C. 195 , 93 S.E.2d 59, 1956 N.C. LEXIS 383 (1956); Elliott v. Owen, 244 N.C. 684 , 94 S.E.2d 833, 1956 N.C. LEXIS 500 (1956); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410, 1973 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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 N.C. LEXIS 1307 (1965); Greenberg v. Bailey, 14 N.C. App. 34, 187 S.E.2d 505, 1972 N.C. App. LEXIS 2030 (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 N.C. App. LEXIS 1458 (1973), cert. denied, 284 N.C. 616 , 201 S.E.2d 689, 1974 N.C. LEXIS 1297 (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 N.C. App. LEXIS 1402 (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 N.C. LEXIS 64 (1857); Nicholson v. Dover, 145 N.C. 18 , 58 S.E. 444, 1907 N.C. LEXIS 244 (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 N.C. LEXIS 376 (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 N.C. LEXIS 211 (1856); Stevens v. Midyette, 161 N.C. 323 , 77 S.E. 243, 1913 N.C. LEXIS 229 (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 N.C. LEXIS 370 (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 N.C. LEXIS 238 (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 N.C. LEXIS 317 (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 N.C. LEXIS 428 (1946).

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 N.C. LEXIS 64 (1857); McGee v. Blankenship, 95 N.C. 563 , 1886 N.C. LEXIS 306 (1886); Winslow v. White, 163 N.C. 29 , 79 S.E. 258, 1913 N.C. LEXIS 107 (1913); McCall v. Lee, 182 N.C. 114 , 108 S.E. 390, 1921 N.C. LEXIS 191 (1921); Millikan v. Simmons, 244 N.C. 195 , 93 S.E.2d 59, 1956 N.C. LEXIS 383 (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 N.C. LEXIS 383 (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 N.C. App. LEXIS 1650 (2009), aff'd in part, modified, 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, 1982 N.C. App. LEXIS 2599 (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, 1982 N.C. App. LEXIS 2599 (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 N.C. App. LEXIS 1017 (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 N.C. LEXIS 399 (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 N.C. LEXIS 331 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 1078 (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 N.C. LEXIS 145 (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 N.C. LEXIS 24 (1891); Proctor v. Finley, 119 N.C. 536 , 26 S.E. 128, 1896 N.C. LEXIS 331 (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 N.C. LEXIS 24 (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 N.C. LEXIS 343 (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 N.C. App. LEXIS 611 (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 N.C. LEXIS 126 (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 N.C. LEXIS 64 (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 N.C. LEXIS 64 (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 N.C. LEXIS 64 (1857); Durham Consol. Land & Imp. Co. v. Guthrie, 116 N.C. 381 , 21 S.E. 952, 1895 N.C. LEXIS 214 (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 N.C. LEXIS 245 (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 N.C. LEXIS 143 (1892); Rose v. Vulcan Materials Co., 282 N.C. 643 , 194 S.E.2d 521, 1973 N.C. LEXIS 1136 (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 N.C. LEXIS 446 (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 N.C. LEXIS 1307 (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. Johnson ex rel. Adams v. Sikes, 49 N.C. 70 , 1856 N.C. LEXIS 25 (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 N.C. LEXIS 245 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. App. LEXIS 1703 (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 N.C. App. LEXIS 1703 (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 N.C. App. LEXIS 1703 (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 N.C. App. LEXIS 1703 (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 N.C. App. LEXIS 2397 (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 N.C. App. LEXIS 2397 (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 N.C. LEXIS 1136 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 123 (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 N.C. LEXIS 318 (1946); Shepherd v. Duke Power Co., 140 F. Supp. 27, 1956 U.S. Dist. LEXIS 3409 (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 N.C. LEXIS 68 (1853); Virginia Trust Co. v. Lambeth Realty Corp., 215 N.C. 526 , 2 S.E.2d 544, 1939 N.C. LEXIS 302 (1939); North Carolina Mtg. Corp. v. Wilson, 205 N.C. 493 , 171 S.E. 783, 1933 N.C. LEXIS 600 (1933); Commercial Credit Corp. v. Robeson Motors, Inc., 243 N.C. 326 , 90 S.E.2d 886, 1956 N.C. LEXIS 364 (1956). But see Commercial Fin. Co. v. Holder, 235 N.C. 96 , 68 S.E.2d 794, 1952 N.C. LEXIS 327 (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 N.C. App. LEXIS 611 (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 N.C. LEXIS 318 (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, 278 N.C. 701 , 181 S.E.2d 602, 1971 N.C. LEXIS 1029 (1971); Northwestern Bank v. Barber, 79 N.C. App. 425, 339 S.E.2d 452, 1986 N.C. App. LEXIS 2059 (1986); 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 N.C. LEXIS 471 (1934); Cuthberton v. Peoples Bank, 170 N.C. 531 , 87 S.E. 333, 1915 N.C. LEXIS 446 (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 N.C. LEXIS 609 (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 N.C. LEXIS 609 (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 N.C. LEXIS 609 (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 N.C. LEXIS 409 (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 N.C. LEXIS 414 (1952); Laing v. Lewis, 133 N.C. App. 172, 515 S.E.2d 40, 1999 N.C. App. LEXIS 365 (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 N.C. LEXIS 609 (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 N.C. App. LEXIS 1068 (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 N.C. LEXIS 414 (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 N.C. LEXIS 440 (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 N.C. LEXIS 609 (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., 467 B.R. 853, 2012 Bankr. LEXIS 1197 (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 N.C. App. LEXIS 704 (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 N.C. LEXIS 1203 (1981) (overruling line of cases represented by Mauney v. Norvell, 179 N.C. 628 , 103 S.E. 372, 1920 N.C. LEXIS 304 (1920); Barbee v. Lamb, 225 N.C. 211 , 34 S.E.2d 65, 1945 N.C. LEXIS 294 (1945), overruled, Kent v. Humphries, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981) and Davis v. Lovick, 226 N.C. 252 , 37 S.E.2d 680, 1946 N.C. LEXIS 428 (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 N.C. LEXIS 29 (1900); Winders v. Hill, 144 N.C. 614 , 57 S.E. 456, 1907 N.C. LEXIS 191 (1907); Ebert v. Disher, 216 N.C. 36 , 3 S.E.2d 301, 1939 N.C. LEXIS 103 (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 N.C. LEXIS 408 (1954); Riggs v. Anderson, 260 N.C. 221 , 132 S.E.2d 312, 1963 N.C. LEXIS 650 (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 N.C. LEXIS 684 (1957); Hunt v. Hunt, 261 N.C. 437 , 135 S.E.2d 195, 1964 N.C. LEXIS 506 (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 N.C. LEXIS 427 (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 N.C. LEXIS 650 (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 N.C. LEXIS 399 (1925); Ebert v. Disher, 216 N.C. 36 , 3 S.E.2d 301, 1939 N.C. LEXIS 103 (1939); Wilson v. Lineberger, 88 N.C. 416 , 1883 N.C. LEXIS 99 (1883), modified, 90 N.C. 180 , 1884 N.C. LEXIS 191 (1884); Ford v. Vandyke, 33 N.C. 227 , 1850 N.C. LEXIS 31 (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 N.C. LEXIS 432 (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 N.C. LEXIS 238 (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 N.C. LEXIS 278 (1948); Shepherd v. Duke Power Co., 140 F. Supp. 27, 1956 U.S. Dist. LEXIS 3409 (D.N.C. 1956).

But see Curtis v. Piedmont Lumber & Mining Co., 109 N.C. 401 , 13 S.E. 944, 1891 N.C. LEXIS 234 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 227 (1899); Stevens v. Midyette, 161 N.C. 323 , 77 S.E. 243, 1913 N.C. LEXIS 229 (1913); Weant v. McCanless, 235 N.C. 384 , 70 S.E.2d 196, 1952 N.C. LEXIS 414 (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 N.C. LEXIS 362 (1950); Yeager v. Dobbins, 252 N.C. 824 , 114 S.E.2d 820, 1960 N.C. LEXIS 440 (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 N.C. LEXIS 461 (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 N.C. LEXIS 511 (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 N.C. LEXIS 234 (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 N.C. App. LEXIS 3297 (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., 363 B.R. 458, 2007 Bankr. LEXIS 792 (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 N.C. LEXIS 402 (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 N.C. App. LEXIS 3297 (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, 1977 N.C. App. LEXIS 1932 (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 N.C. App. LEXIS 2929 (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 N.C. App. LEXIS 2909 (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, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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, 1984 N.C. App. LEXIS 2939 , cert. denied, 311 N.C. 755 , 321 S.E.2d 133, 1984 N.C. LEXIS 2060 (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 N.C. LEXIS 278 (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 N.C. LEXIS 609 (1962); Carr v. Good Shepherd Home, Inc., 269 N.C. 241 , 152 S.E.2d 85, 1967 N.C. LEXIS 1051 (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 N.C. App. LEXIS 1745 , cert. denied, 276 N.C. 728 , 1970 N.C. LEXIS 754 (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 N.C. LEXIS 500 (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 N.C. App. LEXIS 1703 (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 N.C. LEXIS 1051 (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 N.C. LEXIS 237 (1923).

Issues as to title of land cannot be shown by parol. Cox v. Ward, 107 N.C. 507 , 12 S.E. 379, 1890 N.C. LEXIS 101 (1890); Presnell v. Garrison, 122 N.C. 595 , 29 S.E. 839, 1898 N.C. LEXIS 310 (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 N.C. LEXIS 210 (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 N.C. App. LEXIS 1274 (2001).

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 N.C. LEXIS 461 (1958).

§ 22-3. [Repealed]

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 N.C. LEXIS 123 (1940).

§ 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 N.C. App. LEXIS 569 (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 N.C. App. LEXIS 221 (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 N.C. App. LEXIS 221 (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 N.C. App. LEXIS 928 (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 N.C. App. LEXIS 221 (2015).