Schlanker v. Smith

Hall, J. There is no question but that the trial court properly conceived the real meaning and effect .of [522] the agreement last made between the plaintiff and defendant, concerning the real estate, to be, as expressed in the instruction given for the defendant, that the plaintiff was to pay the note in suit, held by him against the defendant, as part of the purchase price of the land. If this conception of the agreement be correct, and, as we-have said, we have no doubt of its correctness, the note was not paid. There was, indeed, an agreement on the part of the plaintiff to turn it in on the land trade to the defendant, or, in other words, in accordance with the terms of the agreement to take the land in payment of the note. That was all; as a matter of fact the note was not paid. If paid, with what was it paid ? The land was not conveyed to the plaintiff. The agreement was not carried out. The agreement was verbal, was within our statute of frauds, and was binding on neither the plaintiff nor the defendant. The words of our statute are, “any contract for the sale of lands.” Rev. Stat., sect. 2513. “But it is not only contracts for the sale of land which are intended to be embraced; for all the cases show that a purchase of land is as much within the statute as a sale of it, the policy of the law being not only to protect owners of land from being deprived of it without written evidence, but also to prevent a purchase of land from being forced by perjury and fraud upon one who never contracted for it.” Browne on the Statute of Frauds, sect. 263. It is added by the author: “ The effect of the provision, as expounded by the courts, is to render unavailing to the parties, as the ground of a claim, any contract, in whatever shape it may be put, by which either of them is to part with any interest in real estate.” The agreement on the part of the plaintiff to buy the defendant’s land in accordance with the terms of the agreement could not be enforced against the plaintiff. As we have seen, the agreement as to the note can not be regarded as a payment of the note, because it was part of the bargain for the land; such bargain being to pay so much money, and, in addition thereto, the note [523] for the land. The agreement as to the note cannot be-enforced any more than the agreement as to the payment of money could be enforced. The agreement as to the note was not an executed contract; so far from requiring the action of a court to disturb it, it requires the action of' a court to enforce it. The agreement was executory. Being within the statute of frauds the agreement cannot avail either party as the ground of a claim against the other. Being executory the agreement did not enforce-itself. The agreement had not of itself the effect of paying the note. If we are correct in our views as to the agreement between the parties touching the note in suit, the rule approved in Galway v. Shields (66 Mo. 314), has. no application to this case. That rule is that no action can be maintained to .recover back money or property, which has been paid upon a verbal contract for the purchase of land, if the vendor is willing to execute the contract on his part. In this case the plaintiff did not pay the note on the contract for the purchase of the land, he is not seeking to- recover anything paid by him on. that contract, but, on the contrary, the defendant is seeking to enforce the contract. In our opinion the evidence-failed to show that the note in controversy had been paid, and the court should have so instructed the jury. Judgment reversed and cause remanded. All concur.