Lowry v. Mehaffy

The opinion of the court was delivered by Kennedy, J. In regard to the first question, it may be observed, that in England it seems to be well settled, if the agreement be signed by one of the parties only, it is sufficient to bind him, because, according to the terms of their statute against frauds, it only requires the writing to be signed by the person to be charged. 1 Sug. Vend. 84, 85, 9th ed. and the authorities there quoted. But our act against frauds is more free, if possible, from all objection of this kind than the English; because our act does not declare the agreement void if not reduced into writing and signed by the parties; nor yet does it declare, as the English statute does, that “no action shall be brought whereby to charge arty [389] person upon any agreement made upon any contract or sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised;” our act so. far as it goes is substantially a copy of the English statute; but then it goes no further than to enact that “ all leases, ést.ates, interests of freehold, or term of years, or any uncertain interest of, in or out of any messuages, manors, lands, &c., made 'or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof; and moreover, no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall at any time be assigned, granted or surrendered, unless it be by deed, or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereto lawfully authorised by writing or by act or operation of law.” From all that is herein contained, it is perfectly manifest that an executory contract for the sale of real estate, or made for the purpose of affecting it in any way, is not to be regarded otherwise than as binding upon the parties, though not reduced to writing and signed by them; and that in case of either refusing to perform it, he makes himself liable to the other for the loss which the latter shall sustain by reason of such non-performance. 4 Dall. 152; 1 Binn. 450. It would seem that, even in England, where a written agreement has been in part executed, and an agreement subsequently entered into between the parties, and reduced to writing, both will be bound thereby, if signed by one of them. Owen v. Davis, 1 Ves. 82-3. It has been held that a receipt for the purchase-money may constitute an agreement in writing within this statute. Coles v. Trecothick, 9 Ves. 234; Blagdon v. Bradbear, 12 Ves. 466; and it has frequently been decided, that a note or letter will be a sufficient agreement to táke the case out of the statute. Coleman v. Upcot, 5 Vin. Abr. 527, pl. 17; Buckhouse v. Crossby, 2 Eq. Ca. Abr. 32, pl. 44; 1 Sug. Vend. 87, 9th ed. In the present case the defendants had an agreement in writing, signed by the plaintiff, binding him to convey the property to them and to give them a title for the same in fee, so that they, upon fulfilling what they agreed to do on their point, had it in their power to recover the property from the plaintiff, had he refused to let them have it. But having been let into [390] the possession of it by the plaintiff below, they could entitle themselves to hold it for ever by paying or tendering to him the purchase-money. Besides, the great object of the act was to prevent the owners of real estate from having their right in the same affected by means of parol evidence, unless to the extent of leases not exceeding a term of thi’ee years. Because, from long experience it had been found, that men in many instances had been defrauded of their rights in such estates, by credit having been given to parol evidence wholly untrue, either from want of accurate recollection, or from the misunderstanding or perjury of witnesses. It was therefore to protect the owners of such estates that the act was passed and couched in the terms that we find it; and consequently, in order to meet and satisfy its design, an agreement reduced into writing and signed by the owner of the estate, specifying the terms and conditions fully upon which he has agreed to part with any right in it, and at the same time delivered to and accepted of by the other party, would seem to be sufficient without its being signed by the latter, to whom the owner agrees to pass the right. In the present case this was not only done, but the agreement was also partially carried into effect by the payment of nearly one-fourth of the purchase-money, and the delivery of the possession of the property sold, to the vendees by the vendor. We therefore consider that the vendee in such case may, by action against the vendor, compel the payment of the residue of the purchase-money; and on the other hand, if the' vendee voluntarily pays or tenders the residue of the purchase-money, he may hold the. property in the same manner as if it were conveyed to him according to the terms of the agreement. The rule laid down by Sergeant Williams in note 4 to Pordage v. Cole, 1 Saund. 320, and adopted by this court in Edgar v. Boies, 11 Serg. & Rawle 450, and in Stevenson v. Kleppinger, 5 Watts 421, would seem to rule the second question in this case in favour of the plaintiff below. The rule is, if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen before the thing which is the consideration of the money or other act to be performed, an action may be brought for the money, or for not doing such other act before peformance; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for, the performance of that which is the consideration of the money or other act. Here the payment of the residue of the purchase-money, with the interest thereon, was to precede the making of the deed of conveyance, unless the defendants should elect to have it before, and give to the plaintiff below their bond and a mortgage securing the payment of the residue of the purchase-money, in five years from the date of the agreement of sale, with interest thereon, to be paid semi-annually. Until this election shall be made, the plaintiff be [391] low cannot be placed under any obligation to make the deed before the five years shall come around, when the residue of the principal of the purchase-money shall become payable. It cannot be pretended that any such election was ever made; on the contrary, it appeared on the trial that Lowry denied that he was ever a party at all to the agreement, and refused to become bound for the payment of the residue of the purchase-money in any way whatever. We therefore think that the plaintiff below was not bound to execute and tender a deed of conveyance to the defendants before bringing this action, for the purpose of enabling him to maintain it. Judgment affirmed.