Jones v. Pease

Downer, J. The parol contract set out in the complaint is admitted or proved, except that part relating to the execution of a bond for the reconveyance of the land the plaintiff agreed to convey to the defendant as security for the payment of one thousand dollars and interest. The execution of the bond, or. agreement to execute it, we do not deem material; but if material, the weight of testimony is with the plaintiff. The main question for our consideration is, whether the part performance proved is such as to entitle the plaintiff to the aid of the court to compel a specific performance of the agreement. The plaintiff contends that he has proved the following acts of part performance: 1. That he paid to Pease four hundred dollars as part of the purchase money. 2. That he and his wife, by deed duly delivered, conveyed certain land to Pease as security for the payment of one thousand dollars, part of the purchase money, in one year. 3. That Pease and wife, by deed duly executed, stamped and delivered, conveyed to the defendant lot 15, block I) (which is a part of the land the defendant, in and by the parol contract, agreed to convey to the plaintiff), and consented to his taking possession thereof, and moving his family into the house thereon; and that the plaintiff did take possession of the lot, and still retains possession. 4. That the defendant, in pursuance of the contract, delivered [652] the plaintiff possession of the mill as tenant in common with himself. There seems to be no dispute as to the delivery of the two deeds, one executed by Pease and wife of lot fifteen to Jones, and the deed of Jones and wife to Pease to secure the thousand dollars; but Pease claims that these deeds were to be stamped, so as to be valid, only on the final consummation of the trade, and delivery of the deed for the mill and mortgage for the purchase money. Jones contends that the reason why the deeds delivered were not stamped was because they had not, and could not get, in the town where they were executed and delivered, the stamps; and that the agreement of the parties was, that either party might procure stamps and stamp the deeds. By the provisions of sec. 1, chap. 78, Acts of Congress of 1865, amending sec. 158 of the internal revenue act of 1864, instruments that are made without being stamped, if there is no intention to avoid the provisions of that act, may be, within twelve calendar months after issuing the same, stamped at the instance of any party interested therein, by his appearing before the collector for the proper district, and proving to his satisfaction “that such instrument has not been duly stamped at the time of making or issuing the same, by reason of accident, mistake, inadvertency, or urgent necessity, and without any willful design to defraud the United States of the stamp duty, or to evade or delay the payment thereof.” As the deeds were delivered without stamps under the circumstances stated, each party could have had the deed to him duly stamped before the collector at any time within a year after the delivery, by only procuring the stamps and making the required proof. After that time, or before, either party could procure the deed to be stamped by the collector by paying the penalty of fifty dollars. Such being the law, we doubt very much whether the delivery of an unstamped deed received by the vendee, and which it is in his power to have stamped and [653] made valid, ouglit not to be held a good part performance of a contract. In this case, however, the deed to Jones of lot fifteen was very soon after its delivery stamped by Jones, as he claims, pursuant to the understanding of the parties when it was delivered; and Pease, when informed of it, made no objection to its being so stamped, and we think must be considered as having assented thereto. If the agreement had been, as Pease says, that the deeds were not to be stamped till the full consummation of the trade, it is probable that he would have objected to the stamping of the deed to Jones before the other deeds were made out and delivered. We have examined the testimony carefully, and come to the conclusion that it proves substantially all that Jones contends it does, except as to his possession under the contract of the mill as tenant in common with Pease. The parol agreement is for the sale and conveyance of different parcels of real estate and an interest in personal property, for the sum of eight thousand dollars. Are part payment of the purchase money, and the conveyance of a part of the real estate, and possession thereof under the contract and deed, sufficient part performance to take the parol agreement out of the statute of frauds ? It is obvious that the contract must be enforced entire or rescinded. If Jones had accepted the four hundred dollars when tendered to him by Pease, and the latter had also reconveyed to Jones the land that Jones had previously conveyed to Pease, and such deed had been accepted by Jones, then the latter could have been compelled to reeonvey to Pease lot fifteen, and also to account to him for its use and occupation. It is however contended by the appellant, that the contract is not taken out of the statute unless possession is delivered to the purchaser under the contract of all the real estate. It appears to us that this position is untenable. As we said before, the contract must as a whole be enforced, or entirely rescinded ; and we see less difficulty in fully carrying [654] into effect the agreement of the parties, than in undoing what they have done. And we do not think, when a party agrees by parol to convey different parcels of land, that possession of each parcel under the contract is necessary to take it out of the statute. If it is, then possession may be given of the most valuable portion of the lands, and the purchase money all be paid, and yet the purchaser be turned out of possession of the very lands he has taken possession of under the contract, by an action of ejectment, and compelled to pay for their use and occupation, and be left to an action at law to recover the purchase money paid. In Smith v. Underdunck, 1 Sandf. Ch., 579, the chancellor held the possession of one parcel of land, under a parol contract for the conveyance of several parcels for a gross sum, and the payment of the purchase money, sufficient to take the case out of the statute; and, on principle, we are unable to perceive how any other doctrine can be successfully maintained. By the Court. — The judgment of the circuit courtis affirmed.