Carter v. Shorter

BRICKELL, C. J. 1-2. The main question presented by the record in this case arises under the Statute of Frauds,. which declares that every contract for the sale of lands is void, unless the purchase money or a portion thereof be paid and the purchaser be placed in possession by the seller; or unless such agreement, or some note or memorandum, thereof expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing. Rev. Code, § 1862, and cl. 6. This court at an early day and after the most attentive consideration, decided that a writing, whatever its particular form, will be a sufficient memorandum or note in writing as required by the statute, provided it contains the essential terms of the contract, expressed with such certainty that they may be understood from the instrument itself, or from some other writing to which it refers, without recourse to parol proof; and be-signed by the party to be charged.—Adams v. McMillan, Ex’r, 7 Port. 80. In that case, as in the case before us, two writings were relied on as presenting sufficient memorandum or note of the contract; one, the auction bill of sale, which was defective in not being signed by vendor or vendee ■ or the auctioneer or his clerk, and the other the letter of the defendant, Adams. This letter, written by Adams, was entirely silent as to the price to be given for the land, and it was held in view of this defect to be totally deficient. “ The purchase money,” say the court, “ is at least as important a part of the contract as any other. Perhaps there would be more danger of perjury, from allowing parol proof to be given of this, than any other constituent of the contract ; yet the latter contains no statement of the price of the land, nor does it refer to any other writing which does.” It was further contended, however, that, although neither the auction sale bill nor the letter taken singly might be evidence of a contract for the sale of lands under the statute; yet, taken together they would be sufficient. But the court held that conceding that to be the fact, it is very clear unless there is a direct reference in one to the other, so as in effect to embody in itself the paper referred to, without the aid of parol proof to effect such union they can not be considered together. The principle thus enunciated has been frequently recognized and affirmed in subsequent cases. Thus the memorandum of a sale made no mention of the name of the person on whose account the sale was [257] made; but an attempt was made on the trial to supply this defect by proof that a map was exhibited both before and during the sale, which contained the name of the person on whose account the sale was made. It was held by this court, that this map can not be in any way connected with the memorandum without resort to oral proof, which would let in all the mischief against which the statute of frauds and perjuries was intended to provide.—Knox v. King, 36 Ala. 367; Carroll v. Powell, 48 Ala. 298, and cases cited. And in a later case the same principle was fully recognized, where it was held, that a memorandum of sale under a mortgage was a substantial compliance with the requisitions of the statute; the memorandum being endorsed upon the mortgage and referring to the property therein as the property sold, and being otherwise regular. For the direct reference to the mortgage made the mortgage a part of the memorandum, and any deficiencies in the mortgage were in like manner supplied by the direct reference in the mortgage to the deed.—Lewis v. Wells, 50 Ala. 198. The above authorities demonstrate how firmly settled is the rule that in all such contracts for the sale of lands, and in the absence of any payment of purchase money and possession by the purchaser, there must be some agreement in writing, or written memorandum, or note of the sale expressing the consideration thereof, the terms, the parties, the property, and signed by the party to be charged or his lawful agent. If the contract is not evidenced clearly by such written proof, the case comes within the purview of the statute, and the sale is void. 2-3-4. It is not contended for the appellee in this case that the single letter from the appellant, Carter, to him presents any sufficient compliance with the requisitions of the statute. But it is urged that this letter must be considered in connection with a preceding letter from appellee, Shorter to Carter, and that the parol proof of the contents of said letter was properly admitted after notice to Carter to produce it and his failure to do so. The difficulty is, the two letters can not be connected without the aid of oral evidence. The proposition the appellant accepted, it is necessary to show by evidence extrinsic to the two letters, was the proposition contained in the letter of the - appellee, and not some verbal proposition in the course of other negotiations. If it was conceded the letter from Carter to Shorter which is set out in the bill of exceptions is properly taken in connection with a prior letter from Shorter to Carter, the substance of which is detailed by the witness, and that these [258] two letters form the memorandum of the contract between the parties; let us consider whether a sufficient compliance with the statute is afforded by them. Shorter writes, proposing to sell to Carter 677 acres of land in Barbour county, describes the land, and states his price at $3,466, payable in cash January 1,1876. The letter from Carter to Shorter, dated Lumpkin, November 25,1875, is as follows: “Maj. Shorter: After considering your proposition, I have come to the conclusion that I will take your place, if there is nothing else against it save what you have shown me. So soon as Mr. Oattis signs the deed of waiver of his equity of redemption, let me know, and I will come over. “ It seems that it is almost impossible for us all to meet at once. Write me by mail. Our mail comes up from Cuthbert every Tuesday and Saturday. Yours, J. E. CARTER.'' In Brown on the Statute of Frauds it is said, the note or memorandum must import an agreement made.. If it show only a treaty pending and not a contract concluded, or if, referring to the alleged agreement, it annex conditions or otherwise malte variations, it has no effect as a memorandum to bind the party from whom it proceeds. Brown on the Statute of Frauds, § 371 a. In Stralford v. Bosworth, 2 Vea. & B. 341, it was held, that a contract for land by letter does not constitute an agreement under the statute, if the general character and description of the correspondence is applicable merely to treaty, nor unless it can be collected upon a fair interpretation of the letters that they import a concluded agreement. — And see Ballingall v. Bradley, 16 Ill. 373. So it has been held that as the purchaser did not in his letter recognize the absolute contract described in the vendor's letter but stated one conditional in its nature, there was no note in writing of the bargain to satisfy the statute of frauds.—Smith v. Surman, 9 Barn. & Cress. 561. It is evident that appellant's letter of November 25, 1875, by its terms was conditional in its nature and not an absolute acceptance of appellee's proposition of sale. It contemplates a future meeting and further correspondence, gives directions as to the arrival of the mails; offers to come over when the equity of redemption is released by Oattis, and says, “ I will take your place, if there is nothing else against it save what you have shown me.'' We do not think that this letter, even in connection with and in response to an earlier one, can be considered as a memorandum under the statute of frauds. [259] 5. The court below erred in its charge to the jury, that if they believed the evidence they must find for the plaintiff. This charge was not only opposed to the conclusion above .attained, but it was given in a case where there was no conflict in the evidence. In such case a charge of this character should never be given. As the other points presented by the record will probably • not arise upon a second trial, we deem it unnecessary to ■ consider them. The judgment is reversed, and the cause remanded.