#### D. E. OXENDINE v. W. H. STEPHENSON.

(Filed 29 February, 1928.)

Deeds and Conveyances — Requisites and Validity — Statute of Frauds.

Where tbe vendor of lands in substantial conformity with bis parol agreement with his vendee tenders a deed to tbe lands to him, which tbe latter refuses because tbe amount of tbe agreed purchase price bad been increased, and after tbe vendor bad sold the lands brings bis action for damages: JSelH, the deed tendered is a sufficient writing within the statute of frauds to bind tbe vendor, and the vendee may recover the damages he has sustained by tbe defendant’s breach of contract to convey.

Appeal by defendant from Grady, J., at November Term, 1927, of Habnett.

Civil action to recover damages for an alleged breach of contract to sell a tract of land containing approximately eleven acres.

Upon denial of liability and a plea of the Statute of Frauds, the jury found in substance:

1. That the defendant agreed to sell the land in question to the plaintiff for the sum of $250.

2. That the defendant prepared and executed a deed to the plaintiff, in furtherance of said agreement, and placed the same in the hands of his attorney for delivery to plaintiff.

3. That upon tender of deed, plaintiff offered to pay the sum of $250, but was informed that the purchase price was $275, which plaintiff declined to pay.

4. That the fair market value of said land, on day of sale, was $800.

Judgment on the verdict in favor of the plaintiff for $550, from which the defendant appeals, assigning errors.

F. H. Taylor and Chas. Ross for plaintiff.

Dupree & Striclcland and Young & Young for defendant.

*239Stacy, C. J.

Tbe exceptions presented by defendant’s appeal are without special merit, and they will not be considered seriatim.

Tbe action is for damages, ratber than for specific performance, because, a,t tbe time of tbe institution of tbe suit, tbe defendant bad parted with title and conveyed tbe land to a third person.

While the authorities elsewhere are conflicting, it is the rule in this jurisdiction that when one, who has agreed orally to sell land, prepares and signs a, deed, which substantially expresses the bargain, and delivers the same in escrow, such writing is a sufficient memorandum to meet the requirements of our Statute of Frauds, and the contract may be considered and dealt with as a valid and binding agreement. Such was the holding in Pope v. McPhail, 173 N. C., 238, 91 S. E., 947, and Vinson v. Pugh, ibid., 189, 91 S. E., 838; and the decisions in Flowe v. Hartwick, 167 N. C., 448, 83 S. E., 841, and MaGee v. Blankenship, 95 N. C., 563, are in recognition of the same principle.

No error having been made to appear, tbe verdict and judgment will be upheld.

Tbe plaintiff also noted an exception to tbe judgment and gave notice of appeal, but this does not seem to have been prosecuted.

No error.