{
  "id": 8651440,
  "name": "J. S. MILLER et al. v. JOHN PIERCE",
  "name_abbreviation": "Miller v. Pierce",
  "decision_date": "1889-09",
  "docket_number": "",
  "first_page": "389",
  "last_page": "391",
  "citations": [
    {
      "type": "official",
      "cite": "104 N.C. 389"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "72 N. C., 321",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8694498
      ],
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    {
      "cite": "3 Met., 494",
      "category": "reporters:state",
      "reporter": "Met.,",
      "case_ids": [
        4374089
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      "case_paths": [
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  "last_updated": "2023-07-14T17:01:43.175763+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. S. MILLER et al. v. JOHN PIERCE."
    ],
    "opinions": [
      {
        "text": "Shepherd, J.\n\u2014 after stating the facts: The jury found that there was no actual payment of the purchase money, and that the contract of sale had been abandoned. If the latter' finding is correct, the question of presumption of payment is eliminated from the case, as there can be no presumption of the payment of a contract which has been rescinded. The sole question for our consideration is whether a written contract for the sale of land can be discharged by matter in pais. . This subject has been very much debated by the Judges of England, and, for a long time, their opinion upon the question was left in doubt. It is now, however, regarded as settled. Mr. Brown, in his work \u201cOn the Statute of Frauds,\u201d says: \u201cAnd this opinion that a parol discharge of a written contract within the statute of frauds is available in equity to repel a claim upon that contract, to which the mind of Lord Hardwicke came so reluctantly, is since firmly esiablished by many authorities.\u201d To the same effect is Greenleaf Ev., vol. I, 302; Phillips & Amos\u2019 Ev., 776; Cumming v. Arnold, 3 Met., 494.\nThe strong intimation of this Court in the same direction, in Faw v. Whittington, 72 N. C., 321, based, we think, upon correct reasoning, renders it unnecessary for us to discuss at length this interesting question. Bynum, J., in that case, says: \u201c While the general rule is that the same formalties are required by the \u2018 Act to create and transfer an interest in land,\u2019 distinction is made between contracts to \u2018sell and convey,\u2019 which are the words used in the act\u201d (Battle\u2019s Reviaal, ch. 50, \u00a7 10), \u201c and contracts or agreements made between vendor and vendee, mortgagor \u25a0 and mortgagee, after that relation between them is .established, and which are intended to terminate that relation.\u201d\nWhile we are of the opinion that the contract may be discharged by matter in pais, there must, however, be something more than the mere oral agreement of the parties. \u201c It is clear that the acts and conduct constituting such abandonment must be 'positive, unequivocal and inconsistent with the contract.\u201d Faw v. Whittington, supra. This requirement is fully met in the present case, as'there is testimony tending to show that the vendee had been in the possession of the land for a great number of years as a tenant of the vendor and his representatives. There is, also, testimony of other acts inconsistent with the continuance of the contract.\nThere were no specific exceptions to the charge of his Honor, but we remark that he seems to have submitted the case to the jury with much fairness to the defendant. The only point which seems to have been made upon the issue in question is the one which we have discussed, and this issue having been properly found for the ^plaintiffs, it is unnecessary, as we have said, to examine the other exception.\nAffirmed.",
        "type": "majority",
        "author": "Shepherd, J."
      }
    ],
    "attorneys": [
      "Mr. D. M. Furches (Mr. C. H. Armfteld filed a brief), for the plaintiffs.",
      "Mr. M. L. McCorMe, for the defendant."
    ],
    "corrections": "",
    "head_matter": "J. S. MILLER et al. v. JOHN PIERCE.\nContract \u2014 Vendor and Vendee \u2014 Statute\u2014Frauds\u2014Evidence.\nA written contract for the sale of land may be rescinded or abandoned by parol, but, before the Courts will enforce such rescission or abandonment, there must be shown something more than a mere oral agreement of the parties; there must appear such positive and unequivocal acts and conduct as are clearly inconsistent with the contract.\nThis is a civil ACTION, which was tried beforfe Boykin, J., at February Term, 1888, of the Superior Court of ALEXANDER County.\nThomas Miller, the ancestor of the plaintiffs, on the 8th of May, 1858, executed to the defendant a bond for title, covering the locus in quo. Under this bond the defendant entered and has been in possession ever since.\nThe plaintiffs sue in ejectment, and--the defendant insists that he has paid the purchase money,, and prays that a title be made to him. There was no' evidence of actual payment, but he relies upon the presumption arising from possession and lapse of time. There was evidence that the contract had been rescinded by parol. ',\nThe following issues were, without objection, submitted to the jury:\n1. Has the defendant abandoned the contract evidenced by the bond for title ?\n2. Has the defendant paid the amount.of purchase money of the land described in the bond for title?\nThe material part of the testimony is to be found in the opinion.\nThe defendant contended that the contract could only be rescinded by writing, and that, in law, it had not been abandoned.\nThere was a verdict on both issues for the plaintiffs, and from the judgment thereon the defendant appealed.\nMr. D. M. Furches (Mr. C. H. Armfteld filed a brief), for the plaintiffs.\nMr. M. L. McCorMe, for the defendant."
  },
  "file_name": "0389-01",
  "first_page_order": 421,
  "last_page_order": 423
}