We find from an examination of the record that the main question is, Can the plaintiffs recover back the $2,500 paid in part performance of the agreement set out in the statement of the case?
The action does not seek to enforce the contract, but to recover back the money paid, and the complaint alleges that the written agreement is defective in its descriptive part, and is therefore void by (384) the statute of frauds and cannot be enforced against the defendants by a bill for specific performance. The defendants answer and say, When you perform your agreement, we are ready, willing and able to *Page 210 perform our part by giving you good fee simple deeds according to the true boundaries, which are well known to and recognized by you, by reason of your acceptance and possession of the lands for more than twelve months.
The plaintiff's position rests upon a misconception of the statute of frauds, sec. 1554. The statute only requires that the contract shall be in writing and signed by "the party to be charged therewith." So that if A contracts in writing to sell a tract of land to B, whose promise to pay is not in writing, A would be bound to perform, but B would not, if he saw proper to avail himself of the statute. Love v. Welch, 97 N.C. 200. If A and B contract for the sale of the land by parol, and the vendor elects to repudiate the contract, the vendee may recover back the amount he has paid under the contract. Wilkie v. Womble, 90 N.C. 254. A parol contract for land is not void, except at the instance of the party who is allowed and does plead the statute, and neither party who repudiates the contract can take any advantage or benefit under it. The repudiator is left in the condition in which he finds himself at the time of the abandonment. The plaintiffs cannot recover in assumpsit, because it is admitted that they had a special contract, and so long as it exists they cannot fall back on the common counts. The cases of Green v. R. R.,77 N.C. 95, and Foust v. Shoffner, 62 N.C. 242, are on "all fours" with the case before us. In the first case, it was agreed verbally that defendant would convey a certain tract of land to the plaintiff as soon as he would deliver to defendant an agreed number (385) of cords of wood. Plaintiff delivered a part of the wood and quit, and sued defendant for the value of so much wood as he had delivered. Defendant said, I am ready and able to give you a good title to the land as soon as you perform your part of the contract, and the Court held that plaintiff could not recover.
It was conceded that defendants had otherwise disposed of the land before this action was begun, and it was urged by counsel that inasmuch as defendants were not in a position to convey the title to plaintiffs at that time, therefore the plaintiffs ought to recover. The argument is without force, because it ignores the fact that more than twelve months prior thereto the plaintiffs upon demand had failed to perform their obligation then past due, and it would have been unreasonable to require defendants to hold their property in an unproductive state until it suited the pleasure of the plaintiffs to make the first move.
We think it unnecessary to consider the numerous other points raised at the trial and on the argument, for assuming each and every one of them in favor of the plaintiffs, with the question above settled, as it is, the result would be the same.
Affirmed. *Page 211
DEFENDANTS' APPEAL IN SAME CASE.