Luckett v. Williamson

Wagner, Judge, delivered the opinion of the court. When this case was before this court on a previous occasion, (31 Mo. 54,) it was decided that an agreement to convey land by general warranty, amounted to an engagement that the party so conveying has or will have an indefeasible title. That a vendor cannot have a specific performance of a contract without showing that he has a good title to the land he has bargained to sell. The objection that formerly arose seems to have been obviated, and a good title was tendered at the last trial. And a specific performance will be decreed, though the title was not perfect when the bill was filed, if it appear that it can be perfected before the judgment or decree. If any injury has resulted, it will be compensated by charging the complainant with interest. (Clute v. Robinson, 2 Johns. 595; Pierce v. Nichols, 1 Paige, 244; Brown v. Huff, 5 Paige, 235; Viele v. Troy & B. R.R., 20 N. Y. 184.) But the great difficulty in this case is the plea of the statute of frauds. The plaintiff gave a written receipt, which was sufficient to take the case out of the statute as far as he was concerned; but as to the defendant, the contract was entirely verbal. It is the constant practice in courts of chancery to compel a specific performance by the vendor of a contract for the sale of lands, subscribed by him, although the purchaser has not bound himself by subscribing the contract. Bills for specific performance are supported in such oases, both be — 396 — cause the statute of frauds only requires the contract to be signed by the party to be charged, and because the plaintiff, by the act of filing the bill, makes the contract mutual, and it is optional with a party who has made a parol contract to convey land to avail himself of tire plea of the statute or not. (McGowen v. West, 7 Mo. 570; Farrar v. Patton, 20 Mo. 81; Ivory v. Murphy, 36 Mo. 534; Worrall v. Munn, 1 Seld. 229; 4 Russ. 298; 1 Russ. & Myl. 391; 7 Ves. 265; 1 Edw. Ch. 5 ; 2 Jac. & Walk. 426.) The defendant denies the contractas set forth in plaintiff’s petition, and alleges a different contract, and in addition thereto pleads the statute of frauds. Where a bill for a specific performance of a parol agreement was filed, the only witness for the plaintiff proved an agreement different from that stated in the bill, and defendants in their answer stated a different agreement, and Lord Eldon decreed specific performance, according to the answer. (Mortimer v. Archer, 2 Ves. 243.) But the statute of frauds was not pleaded, nor relied op by the defendants. Formerly, specific performance was decreed where the parol agreement was confessed in the answer, although the statute of frauds was-insisted on as a defence. (Child v. Godolphin, 1 Dick. 39.) But this doctrine may now be considered as entirely overruled, and the doctrine firmly established, that even when the answer confesses the parol agreement-, if it insists, by way of defence, upon the protection of the statute, the defence must prevail as a competent bar. (2 Sto. Eq. Ju. § 757; R. C. 1855, p. 1238, § 47.) And this doctrine is only carrying out, and executing the statute ; for it is impossible to see how a party can be bound by a contract which the statute declares void, when he insists upon it as a defence, and declines to waive his rights under it. We are at a loss to determine on what grounds the defendant asks for compensation for hiá” improvements, when he denies that they were made under a valid or binding contract, and shields himself behind the statute of frauds. He asks this court to stretch forth its strong arm of equity inter — 397 — position, to protect him, and at the same time divests it of its jurisdiction, by setting up a defence which, if valid, precludes all equitable relief. We have not been able to find the slightest authority in any elementary treatise, or single case in any of the reports, which countenances the idea that a vendor can have specific performance against the purchaser on the ground that he has been placed in possession of the purchased premises, and paid part of the purchase money, when he sets up as a bar the statute of frauds. Courts frequently decree specific performance in favor of a vendee, when he has been placed in possession, paid part of the purchase money, and made valuable improvements, on the ground that to withhold relief under such circumstances would make him the victim of fraud, as he could not be restored to his former condition, and would have no adequate remedy at law. But this doctrine of part performance does not apply to the vendor. The law was well summed up by Judge Scott in this very case: “ We do not see how the plaintiff can meet the plea of the statute by insisting that the defendant has been put in possession, made payment of part of the purchase money, and erected valuable improvements. These circumstances might be insisted on by the purchaser on a "bill for specific performance, when the statute was pleaded by the vendor; but if the vendee will waive the right these circumstances conferred on him, we do not see how the vendor can insist on them for him.” The defendant availing himself of the statute of frauds, the parties must be left to their remedy at law. The judgment is reversed, and the suit dismissed. Judge Holmes concurs; Judge Lovelace absent.