Herndon v. Durham & Southern Railroad
Supreme Court of North Carolina
Appeal from Garter, J., from an order signed at chambers, 1 March, 1913, from Wake. This is an action to restrain the defendant from closing a passway under its track, leading from one part of the plantation of the plaintiffs to another part.
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Appeal from Garter, J., from an order signed at chambers, 1 March, 1913, from Wake. This is an action to restrain the defendant from closing a passway under its track, leading from one part of the plantation of the plaintiffs to another part. The plaintiffs’ affidavit, used in the application for a restraining order, states in substance that they are the owners of the land described, containing about 250 acres; that in the year 1904 or 1905 the defendant surveyed across said land for the purpose of locating its line, and applied to the plaintiffs for the purchase of a right of way, through G.…
1Opinion of the CourtAlleN, J.
A parol contract relating to land is not void, but voidable, and we have beld that, when executory, it may be enforced if it is not denied and tbe statute is not pleaded, and tbe evidence to prove it is not objected to (Henry v. Hilliard, 155 N. C., 378), and that, when executed, tbe plea of tbe statute of frauds is no longer applicable. Choat v. Wright, 13 N. C., 289; Hall v. Fisher, 126 N. C., 208.
Upon tbe, strength of these authorities, tbe ruling of bis Honor might be sustained upon tbe ground that tbe agreement of tbe superintendent has been performed, but for tbe fact that an easement,…
2Cases cited26 opinions
- Braddy v. . ElliottSupreme Court of North Carolina · 1908
- Hyatt v. Dehart.Supreme Court of North Carolina · 1905
- Ritchey v. WelshIndiana Supreme Court · 1898
- Marshall v. Commissioners of Stanly CountySupreme Court of North Carolina · 1883
- Harrington v. Rawls.Supreme Court of North Carolina · 1902
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3Cited by4 opinions
- Palmetto Bank & Trust Co. v. GrimsleySupreme Court of South Carolina · 1926
- Bradley v. Metropolitan Life Insurance Co.Supreme Court of South Carolina · 1931
- Tate v. Seaboard Air Line Railway Co.Supreme Court of North Carolina · 1915
- Tunkle v. PadgettSupreme Court of South Carolina · 1931