Howie v. Swaggard

*413 Smith, C. J., delivered the opinion of the court. This is an appeal from a. decree sustaining a demurrer to and dismissing an orignal bill of complaint, wherein the complainants seek the specific performance of an alleged contract for the sale of standing timber. The bill alleges: That “the complainants bought from the defendant C. S. Swaggard all of the timber on the southeast quarter of the northwest quarter, section fourteen, and the west half of the northeast quarter, section 15, all in township 7, range 3 east, all in Rankin county, state of Mississippi, and paid the said -'Swaggard ten dollars *414 to bind the trade, the payment being accompanied by a memorandum in writing in words as follows, to-wit: ‘Part. payment on all timber on southeast quarter of northwest quarter, section 14, and the west half of northeast quarter, section 15, township 7, range 3 east, Rankin county, state of Mississippi; balance due nine hundred ninety dollars.’ That said payment was accepted in part payment for said property, and thereafter the deed was written and executed by the said C. S. Swaggard in words and figures as appears set out by a copy of the same, which said copy is hereto attached and marked Exhibit A hereto. That the said O. S. Swaggard executed this deed, and complainants charge on information and belief that the same has been mailed to a bank for delivery.” The bill further alleges that the ten dollars to “bind the trade” was paid to Swaggard by means of a check which he indorsed “by writing his name On the back thereof” and still retains; that the deed which Swaggard agreed to deliver to the complainants has not been delivered, and Swaggard’s reason therefor is that he has conspired with another to fraudulently withhold the deed, in order to obtain a greater price from the complainants for the timber. The appellants ’ contentions are: First, that the written memorandum which “accompanied” the check to Swaggard is sufficient to satisfy the statute of frauds; second, Swaggard, having accepted and retained the check for ten dollars given him “to bind the trade,” is estopped thereby “from claiming that he is not bound by his agreement; ’ ’ third, that Swaggard cannot invoke the statute of frauds, for the reason that his motive in refusing to comply with his promise to execute the deed was that he might perpetrate a fraud on the appellants; fourth, that the allegation of fraud contained in the bill should have been denied by answer. Assuming, for the purpose of the argument, that the memorandum which accompanied the check to Swaggard identifies him as the seller of the timber and sufficiently sets forth the terms of the sale, it is insufficient to satisfy *415 the statute of frauds and to entitle the appellants to a decree for specific performance for two reasons:. (a) The memorandum was not signed by Swag’gard, and was neither referred to in the check nor physically attached thereto in such manner as to be a part thereof, and covered by Swag’gard’s signature on the back of the check. Fisher v. Kuhn, 54 Miss. 480; Wilkinson v. Taylor Mfg. Co., 7 So. 356, 67 Miss. 231. (b) The check was not negotiated or returned to the appellants by Swag’gard, but, on the contrary, was retained by him; consequently it did not become effective as a memorandum of an agreement by Swaggard to convey the timber, for, in order to become effective as such, it must have been delivered to the appellants. Johnson v. Brooks, 31 Miss. 17, 66 Am. Dec. 547. The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract. Fisher v. Kuhn, 54 Miss. 480. “It is the settled doctrine in this state that part performance will not take a parol sale of lands out of the statute of frauds; no exceptions of that character will be ingrafted on the statute. . . . Neither will it be sufficient, to take the case out of the statute, that it formed a part of the contract itself that it should be reduced to writing*, but the vendor fraudulently evaded this part of the agreement.” Box v. Stanford, 13 Smedes & M. 93, 51 Am. Dec. 142. “When fraud is charged in the bill, it need not be answered, if the bill, admitting the fraud, presents no ground for relief. A bill, therefore, to enforce a parol sale of land, charging the defendant with fraudulently refusing to reduce the agreement to writing,- though it was part of the contract it should be so reduced, may be demurred to, without an answer to the charge of fraud. ’ ’ Box v. Stanford, 13 Smedes & M. 93, 51 Am. Dec. 142. The case of Finucane v. Kerney, Freem, Ch. 65, relied on by counsel for the appellants in support of their last two contentions, was not decided by this court or *416 its predecessor, the high court of errors and appeals, but by the old ‘‘superior court of chancery,” and the English decisions therein relied on were afterwards expressly repudiated by the high court of errors and appeals in Box v. Stanford, supra, wherein the court expressly held that no exception would be ingrafted on the statute of frauds, but that it would be enforced as written. Affirmed.