Mr. Justice CLARK states the case as follows: 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 N.C. 321; Miller v. Pierce, 104 N.C. 389; Holden v.Purefoy, 108 N.C. 163; Joyner v. Stancill, 108 N.C. 153; Taylor v.Taylor, 112 N.C. 27; Sitterding v. Grizzard, 114 N.C. 108.
3. Besides the above grounds, either of which is sufficient, the facts set out in the complaint and admitted by the demurrer constitute an equitable estoppel upon the defendant. Gorrell v. Alspaugh, 120 N.C. 362,368.
It is true that the evidence of the parol discharge of a written contract within the statute of frauds, or an equitable estoppel by matter in pais, must be "positive, unequivocal and inconsistent with the contract," and if left to the jury upon a denial in the answer, (403) it must be with that instruction, but the allegation in the complaint is of that nature, and it is admitted by the demurrer.
In dissolving the restraining order and also in dismissing the action there was
Error.
Cited: Brinkley v. Brinkley, 128 N.C. 506. *Page 283