Mr. Justice ClaeK states the case as follows: Appeal from Allen, J., at Spring Term, Subby Court. The plaintiff filed an affidavit for a restraining order which is treated as a complaint, wherein he alleged that the plaintiff was, in 1892, the owner of a tract of land, described in the complaint, and at the same time one J. A. Danally was the owner of a tract of land — this last tract was encumbered by a mortgage to the defendant.
Good law ✅— No negative treatment on recordhow we know
Decided 1899-12-05
How this case has been cited
Cited by 5 later decisions — most recently April 1952
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
After stating the case. 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.
¶3
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.
¶4
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
*403
upon, a denial in the answer, it must be with, that instruction, but tire allegation in the complaint is of that nature, and it is admitted bj the demurrer.
¶5
In dissolving the restraining order and also in dismissing the action there was
