Gill v. Newell

McMillan, J. By the Oowrt There is no doubt, we think, that the facts as found by the referee in this case, show such a part performance of the parol contract between the plaintiff and the defendant Newell, as withdraws it from the operation of the statute of frauds. The plaintiff paid to Newell the five hundred dollars for the payment in hand, provided for in the contract between Lash and Newell; the latter delivered the written contract between himself and Lash to the plaintiff, who received and has ever since retained it, and relying, on said verbal arrangement with New-ell, ánd supposing he would carry it out in all respects, the plaintiff thereupon entered upon the land and commenced improving the same by breaking or plowing it, and did break or plow seventy-five acres — about one-half — of the land, at a cost of $3.00 per acre for each of said seventy-five acres.' It distinctly appears from the referee’s report, that these things were all done subsequent to and in pursuance of the parol agreement, and that such entry into possession and improvement of the land by the plaintiff, was with the knowledge of, and without objection from the defendant Newell. Delivery of, and entry into possession of land in pursuance of, and in direct reference to a parol contract, has always been considered an act of part performance, which will take the case out — 469 — of tbe statute of frauds, and entitle tlie vendee to tbe specific performance of tbe contract. Parkhurst vs. Van Courtland, 14 Johns., 15; Moreland vs. Lemasters, 4 Blackford, 383; Harris vs. Knickerbacker, 5 Wend., 638; 1 Leading Cas. in Eq., 732, and authorities cited. "What then is the effect of this contract ? The distinct object of Newell and the plaintiff on making this parol contract was that the plaintiff might become the owner of the land, and for this purpose Newell entered into the written contract with Lash. It was agreed by this parol contract not only that Newell upon the consummation of the purchase and the execution of the deed ■from Lash to him, would immediately convey the premises to the plaintiff, but it was further agreed that “ all the rights secured under the contract of purchase to said Pewell should instantly inure to the benefit of said plaintiff, the said Newell to be merely the channel or conduit through which the title should flow from the said Lash to plaintiff.” It seems to us from this agreement that the parties intended it as an assignment of the contract of purchase by Newell to the plaintiff, and as Newell’s right to the possession of the premises was secured by the terms of the written contract alone, the delivery of the written contract and of the possession of the premises by Mm to the plaintiff, would indicate the same construction by the parties themselves; and such we think was the effect of the parol agreement and the acts of the parties thereunder. Under our statute it would seem that no trust would have resulted in-favor of Gill from the mere payment of the purchase money by him under this agreement,.but the defendant Newell would have the title discharged of any trust. Gen. Stat., Ch. 43, secs. 7-8, p. 341; Wentworth vs. Wentworth, 2 Minn., 277. Under the written agreement standing alone, therefore, Newell would, become the equitable owner of the — 470 — premises and entitled to tbe possession. But as tbe express purpose of the parol agreement between Newell and Gill was to procure the land for Gill, and the written agreement was obtained by-Newell and delivered to Gill for that purpose, and in pursuance of this parol agreement, the effect of the parol agreement as between them, if valid, was to transfer the equitable ownership of the land, and the rights of Newell under the written contract to Gill, so as to enable him, either through Newell or in some other way, to obtain the legal title; and whether in one way or the other, .as between the parties to the contract, cannot be material, since in either way their intention and agreement will be substantially accomplished. This, as we have seen, was the intention of the parties, and upon this understanding they acted, Gill advancing the first payment of the purchase money under the written contract, entering into the possession of the premises and making valuable improvements thereon at a large cost and expense. The plaintiff having-thus entered into possession of and improved the premises on the strength of the agreement that all the rights of Newell under the written contract inured to him, among which were the right of possession, and the right to acquire the legal title upon the performance of the terms of the contract, it would be a fraud upon him by Newell to say that he acquired no such rights; the law will therefore give effect to the contract according to the intention of the parties. As Newell — the parol contract being valid — was by his own agreement, a mere instrument to pass -the legal title to Gill, the equitable owner, if he in fraud of his agreement 'repudiates the contract, and seeks to defeat the transfer of the legal title to the plaintiff, a Court of Equity will dispense with his instrumentality, and find other means of-accomplishing the original intention and agreement of the parties. — 471 — Anri since Lash, tbe original owner of tbe premises, interposes no objection to this course, but is willing to convey directly to tbe party entitled to a conveyance, Newell having repudiated the agreement and refused to carry it out, the Court will give effect to the contract and direct its execution by a conveyance directly to the plaintiff. The referee finds ‘that the defendant Newell about the time of, but prior to the maturity of the second payment, repudiated the parol agreement and refused to carry it out, and offered to repay the plaintiff all the money he had expended on account of the land, including the amount paid for plowing, together with interest thereon at the rate of twelve per cent, per' annum, and in addition thereto one hundred dollars by way of bonus, and for his trouble, and duly tendered him the money, but the plaintiff declined to receive the money or -any part thereof. Tbe tender by Newell was ineffectual for any purpose ; it could not work a reeission of the contract, nor did it operate as an excuse or justification of its repudiation by the defendant Newell. The terms of this contract between the plaintiff and Newell, as found by the referee, are complete and .unambiguous; there is nothing whatever inequitable on the part of the plaintiff, nor are there any equities in favor of the defendant obstructing a decree of specific performance; the repudiation of the contract was based upon nothing but the desire of the defendant Newell not to carry it out. The offer or tender by the defendant, indeed, is coupled with an admission of the agreement, and determination to violate it. So far, therefore, as .this offer or tender by the defendant is concerned, it cannot affect the rights of the parties in this case. Has the plaintiff complied with his agreement ? It is objected by the defendant Newell, that when the first deferred payment fell due the plaintiff did not furnish or offer to fur — 472 — nish him the money to meet it, or offer to pay Lash except upon condition that Lash would convey to him, the plaintiff. If we are correct in the view taken of the parol agreement, that as between Newell and Gill at least, its operation was in the nature of an equitable assignment of the written contract to the latter, and that the former was a mere instrument to pass him the title, it may perhaps be doubtful whether as between them a tender was necessary at all, at least it would seem to follow that the repudiation of the contract, and refusal to carry it out by Newell prior to the maturity of the deferred payments, superseded the necessity of a tender by Gill, as the repudiation of the contract was virtually a refusal of the tender if offered, and neither law nor equity requires the performance of an unnecessary act. Newell having parted with his interest in the contract, it is not for him to object to the sufficiency of the tender by the plaintiff to Lash, and Lash interposes no objection to conveying the premises to Gill on the ground of any want of performance of the contract by him; Lash having received notice of Gill’s rights in the premises was bound by the notice. Newell, therefore, acquired no right, either as against Gill or Lash, by his offer to. the latter to pay the deferred installments of the purchase money, if he, Lash, would convey the premises to him. It does not appear that any note or mortgage was ever executed by Newell under the written contract; the payment of the purchase money will cancel the written agreement, and no liability will remain thereafter against Newell. Lash raises no objection on the ground of want of performance, but is willing to convey to the party entitled to a conveyance, upon the payment of the balance of the purchase money. And the plaintiff is now and ever has been ready and willing and able to make said payments on his part, and take a deed of the premises either directly from . Lash, or from Newell if — 473 — he will carry out the parol agreement. Newell has repudiated and refused and still refuses to carry out the parol agreement. The agreements between the parties will be substantially effected in the conveyance of the premises by- Lash directly to Gill the plaintiff. ¥e see no reason, therefore, why the plaintiff is not entitled to a decree or judgment in accordance with the finding of the referee. The judgment entered being in accordance with the finding, it is correct. Judgment affirmed.