Zickafosse v. Hulick

By the Court, Wilson, Justice. The only question which arises in this case is presented by the bill of exceptions which is as follows, viz: “Be it known that on the trial of the above cause, the plaintiff introduced a witness to prove a parol contract for the sale of the claim of the plaintiff to defendant, referred to in his declaration, which contract was never reduced to writing, nor the contract on which plaintiff sought to recover ever, reduced to writing. The defendant objected to the introduction of the evidence on the ground that a claim was an interest in land within the meaning of the statute of frauds, which was overruled by the court, and the testimony permitted to go to the jury, to which defendant excepts, &c. ” Is a parol sale of improvements upon the public lands,.such a sale as is affected by the statute of frauds? The 1st. 2d and 3d sections of the statute of frauds in force here are taken from the statute of frauds, 29 Car. I. Cap. 3, and it is now well settled by numerous decisions, that this statute embraces within its provisions only sales or transfers of lands or some-interest therein. 11 East. 362—2 M. & S. 205, 208—Chitty on Con. 207—Robts. on Stat. of Frauds, 126-7—4 Mo. Rep. 235. In Missouri where the statute of frauds is similar to that of ours, a case precisely in point will be found. See the case of Clark et al. vs. Shultz, 4 Mo. Rep. 235, where the court use the following language: [178] “ In New York under prectselysucha statute’as-our own, it has been settled that an improvement on the public land, is not such an interest in or concerning the land, as to make it necessary to reduce’the sale or contract for the transfer of it to writing, 5 J:- R. 273—11 J. R. 145. ” In that case judgment was rendered for the plaintiff or. two promissory notes, the consideration of which.was a verbal contract for the sale of the right of the plaintiff’s to certain improvements upon the public lands. Whether there were statutes in those States, authorising the collection of demands growing out of contracts for sales of improvements on public lands, does not appear from the decisions referred to. But here, at the time of making of the promise sued upon in this case, a law was in force enacting “ that all contracts, promises, assumpsits or undertakings,. either written or verbal, which shall be made hereafter in good faith and without fraud, collusion or circumvention, for sale, purchase, or payment of improvements made on the lands owned by the government of the United States, shall be deemed valid in law or equity, and may be sued for and recovered ¡as in other contracts.” As the statute of frauds does not apply to such a contract or promise, and as the statute provides for the collection of these demands, the judgment below is affirmed.