Volume 20 — North Carolina Court of Appeals Reports

1. Frauds, Statute of 2 — contract to convey land — sufficiency of description The statute of frauds requires that any land sale contract or a memorandum thereof be put in writing and include a description of the land either certain in itself or capable of being reduced to certainty by something extrinsic to which the contract refers. 2. Frauds, Statute of 2 — contract to convey land — reference to another writing — sufficiency of description An agreement between the parties whereby plaintiffs agreed to buy and defendants agreed to sell a particular tract of land was<page_number>Page 12</page_number> sufficient to satisfy the statute of frauds where the agreement made reference to an "Attachment" which described the tract, the "Attachment" consisted of five deeds which provided an adequate description of the property, and the "Attachment," though not physically connected to the contract of sale, was delivered contemporaneously with the execution of the contract. 3. Contracts 4 — contract for sale of land — promise of vendee to obtain loan — sufficiency of consideration A contract between the parties for the sale of land which was "contingent upon . . . [plaintiffs] being able to secure a second mortgage from NCNB on such terms and conditions as are satisfactory to them . . ." was a valid and enforceable contract, supported by consideration, since the contract included an implied promise by plaintiffs to use reasonable effort to procure a loan and to exercise good faith in deciding whether the terms of the loan were satisfactory. 4. Contracts 18, 20 — contract for sale of land — failure to perform on time — waiver Where plaintiffs failed to tender performance on a contract for the sale of land within the required time limits, defendants could not claim that they were thereby relieved from performance since defendants did not furnish to plaintiffs an inventory of personalty and a list of outstanding leases in accordance with the terms of the contract, thus preventing plaintiffs from earlier compliance; furthermore, mutual agreement on a closing date some three months later than that specified in the contract constituted a waiver of any prior contractual deadlines for performance.

1. Clerks of Court 2; Mortgages and Deeds of Trust 33 — funds held by clerk of court — issues of fact as to ownership — jurisdiction of clerk Where a respondent in this action filed answer raising issues of fact as to the ownership of money on deposit with the clerk, the proceeding should have been transferred to the civil issue docket of the superior court for trial, since the clerk thereafter had no jurisdiction to adjudicate ownership of the funds which he held for safekeeping under G.S. <cross_reference>45-21.31</cross_reference> (e). G.S. <cross_reference>45-21.32</cross_reference>(c). 2. Courts 6 — appeal from clerk of superior court — jurisdiction of superior court Though the order of the clerk of superior court adjudicating ownership of funds which he held for safekeeping was a nullity, when by appeal the matter came before the judge of the superior court, the judge did have jurisdiction to proceed to hear and determine all matters in controversy. G.S. 1-276. 3. Limitation of Actions 12; Rules of Civil Procedure 13 — counterclaim — relation to commencement of action — statute of limitations A defendant's counterclaim relates to the commencement of the action, and if it is not barred by the statute of limitations at that time, it does not become barred afterwards during the pendency of the action.<page_number>Page 611</page_number> 4. Limitation of Actions 12; Rules of Civil Procedure 13 — counterclaim — failure to serve on guardian ad litem — claim not barred by statute of limitations Where the sole matter involved in this proceeding was the determination of the rights of the parties in the funds on deposit with the superior court clerk, respondent's counterclaim based on fraud related directly to that matter, and her claim was not barred by the statute of limitations at the time the proceeding was originally commenced in 1971, nor when a guardian ad litem was appointed for one respondent and made a party to the proceeding, nor when respondent filed her answer asserting her claim, respondent's claim related to the date of commencement of the proceeding, and the trial court erred in entering summary judgment against respondent based on its finding and conclusion of law that failure of respondent to serve her counterclaim on the guardian ad litem allowed the statute of limitations to continue to run so that her claim based on fraud discovered in 1969 was barred at the time judgment was entered in 1973.