The opinion
Clark, C. J.,
concurring: The statute of frauds, Revisal, 976, makes void, not the promise to pay, but only “the contract to sell or convey” realty, when not in writing. The construction that the defendant only can plead the statute makes its application depend upon the accident of the position of the parties to the action. The more reasonable construction is that the “party to be charged” means “the party sought to be charged” with the conveyance of realty.
In 29 A. and E. Enc. (2 Ed.), 808, it is said, citing many authorities: “The vendee in a parol contract for the sale of land cannot set up the statute where the vendor is ready and willing to perform and seeks to recover the purchase money.” To the same effect are Holland v. Hoyt, 14 Mich., 238 ; Burke v. Wilbur, 42 Mich., 328 , which hold that the statute of frauds “does not require the agreement of a vendee to pay the purchase money to be in writing.” To the same tenor, Washington Glass Co. v. Masbaugh, 19 Ind. App., 105 ; Taylor v. Russell, 119 N. C., 30 ; Harty v. Harris, 120 N. C., 410 ; McNeill v. Fuller, 121 N. C., 213 ; Bank v. Loughran, 126 N. C., 818 ; Rogers v. Lumber Co., at last term, ante, 108, and many other cases in this and other courts. There are authorities to the contrary. The point is an open one, and it may be well to settle it by amendment of the statute. It does not arise for decision in this case.
It would seem clear upon the reason of the thing that as a verbal contract for the payment of money is good and en-forcible when given for all other considerations, there is no cause to construe the statute of frauds to mgike it invalid when the consideration is realty. The mischief intended to be remedied by the statute of frauds is solely the obtaining an inter *547 est in land under a verbal conveyance or contract, and it was intended as a protection to the vendor only. There is no protection needed by the purchaser more than by any one else who gives his verbal promise, upon a consideration proven or admitted, to pay money.