Hemmings v. . Doss
Supreme Court of North Carolina
Mr. Justice ClaeK states the case as follows: Appeal from Allen, J., at Spring Term, Subby Court. The plaintiff filed an affidavit for a restraining order which is treated as a complaint, wherein he alleged that the plaintiff was, in 1892, the owner of a tract of land, described in the complaint, and at the same time one J. A. Danally was the owner of a tract of land — this last tract was encumbered by a mortgage to the defendant.
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Mr. Justice ClaeK states the case as follows: Appeal from Allen, J., at Spring Term, Subby Court. The plaintiff filed an affidavit for a restraining order which is treated as a complaint, wherein he alleged that the plaintiff was, in 1892, the owner of a tract of land, described in the complaint, and at the same time one J. A. Danally was the owner of a tract of land — this last tract was encumbered by a mortgage to the defendant. That Danally proposed an exchange of lands with plaintiff. Plaintiff refused to make the exchange unless defendant would relinquish his lien thereon. Defendant…
1Opinion of the CourtClaRK, J.
After stating the case. There was error in the ruling below. 1. Advantage of the statute of frauds can not be taken in this State by demurrer, since that admits the contract. The contract, though verbal, is valid and binding unless the invalidity by reason of the statute is set up by answer. Loughran v. Giles, 110 N. C., 423; Williams v. Lumber Co., 118 N. C., 928.
2. The statute of frauds, The Code, 1554, requires only contracts to “sell and convey” lands or interest therein to be in writing, and hence a verbal agreement to release a mortgage is not within the statute. Faw v. Whittington, 72…
2Cases cited9 opinions
- Faw v. WhittingtonSupreme Court of North Carolina · 1875
- Gorrell v. AlspaughSupreme Court of North Carolina · 1897
- Miller v. . PierceSupreme Court of North Carolina · 1889
- Taylor v. . TaylorSupreme Court of North Carolina · 1893
- Holden v. . PurefoySupreme Court of North Carolina · 1891
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3Cited by9 opinions
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- Oklahoma Farm Mortgage Co. v. CesarSupreme Court of Oklahoma · 1936
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