#### R. A. KENDALL v. PINNIX REALTY COMPANY.

(Filed 26 April, 1922.)

■Parties — Actions—Fraud—Contracts—Specific Performance — Deeds and Conveyances — Statute of Frauds — Statutes.

Tire plaintiff and another entered into a written contract of purchase of defendant’s land, sufficient to bind the latter under the statute of frauds, C. S., 988, and the plaintiff alone brought this action, alleging fraud, and seeks to recover back the part payment of the purchase price made thereon by himself and the other person interested, who has not been made a party: Held, by his action the plaintiff repudiated the contract and renounced his right to specific performance, and such other person having an equitable interest in the subject of the action is a proper party with a right to assert such equity and to have the entire controversy settled in one action. C. S., 457.

Appeal by defendant from Finley, J., at September Term, 1921, of RICHMOND.

Tbe defendant contracted to sell to the plaintiff and his father, J. A. Kendall, a tract of land, situated in Anson County, and executed the 'following receipt: “Received of Mr. R. A. Kendall and J. A. Kendall, ■on 8 July, 1920, $500, as part payment on 121 acres of land of Mr. M. L. Ross place at $65 per acre, 2% miles north of Polkton on the Polkton .■graded road.

*426“Balance of one-balf payment to be paid by 1 January:, 1921, wbicb is $3,432.50. PiNNix Realty Company,

J. C. Flowers, Manager.” ■

Plaintiff alleged tbat be paid tbe $500 named in tbe receipt, and tbat tbe payment was induced by fraud. Denial by tbe defendant.

Issues as to tbe alleged fraud and damages were answered in favor of tbe plaintiff, and from tbe judgment rendered tbe defendant appealed.

J. Chesley Sedberry for plaintiff.

Fred W. Bynum, for defendant.

Adams, J.

Since tbe evidence for tbe plaintiff tends to support tbe cause of action set out in tbe complaint tbe motion to nonsuit was properly denied; but tbe rights of all tbe parties to tbe contract cannot be determined in a controversy solely between tbe plaintiff and tbe defendant. As we understand tbe record, tbe parties admit tbat as to tbe defendant tbe receipt introduced in evidence is a sufficient compliance with tbe statute of frauds, and tbat against tbe defendant specific performance may be enforced. But tbe plaintiff contends tbat neither be nor bis father is bound by tbe receipt, and tbat either of them has tbe right to repudiate tbe alleged contract. C. S., 988; Burris v. Starr, 165 N. C., 657; Lewis v. Murray, 177 N. C., 17. Accordingly, tbe plaintiff prosecutes this suit to recover tbe amount paid- as a part of tbe purchase price of tbe land. In doing so be repudiates tbe contract and renounces bis right to demand performance by tbe defendant. It will be noted tbat tbe defendant acknowledges receipt of tbe $500 from both tbe plaintiff and bis father. Tbe latter, who is not a party to tbe suit, appears to have an equitable interest and a right to assert it in this action, and it does not appear tbat be has voluntarily abandoned bis rights. Besides, tbe defendant- is entitled to an opportunity to have tbe entire controversy settled in one action. J. A. Kendall should therefore be made a party. If be is unwilling to become a coplaintiff, summons may be issued against him as a defendant. O. S., 457. To this end a new trial is necessary. Let this be certified as provided by law.

New trial.