Hairston v. Jaudon

Peyton, J., delivered the opinion of the court. Tins suit was commenced by attachment returnable to the November Term, 1867, of the Circuit Court of Yallobusha county. The plaintiff in his declaration complains that in the month of December-, 1859, the defendants were indebted to him in the sum of $750, for so much money then paid by the plaintiff for the use of the said defendants at their special instance and request ; and also in the further sum of $750, for so much money by the said defendants before that time had and received for the use of the plaintiff. To this declaration the defendants appeared and pleaded that in 1859 they entered into a verbal contract with the plaintiff to sell him a tract of land, situated in said county of Yallobusha, for the sum of $1500, and in pursuance of said contract they delivered posession of said tract to the plaintiff, w-ho continues [385] to occupy the same, and that the sum now sued for is part of the purchase-money paid for said land, in pursuance of said verbal contract; and that before the institution of this suit they tendered a deed of said land to the plaintiff, and offer to convey the same to him when the balance of the purchase-money is paid to them, and that they have always been willing to comply with said verbal contract. The plaintiff demurred to this plea, on the ground that the parol contract therein stated was null and void, and imposed no legal obligation on him to perform it. The demurrer was overruled by the court, and leave given to the plaintiff to reply to said plea. The plaintiff avers in his replication that at the October Term, 1867, of said Circuit Court the defendants recovered said land in an action of ejectment against him, and insists that they thereby abandoned and rescinded the contract, and are estopped by the records in that case from insisting upon the performance of it. The defendants in their rejoinder admit the proceedings in ejectment as stated in the replication, but deny that they intended thereby to abandon or rescind the contract, and insist that the plaintiff is legally bound to carry out the contract, and aver a readiness on their part to perform the same, by making to the plaintiff a good and perfect title to the land upon his payment of the balance of the purchase-money, as stipulated in the contract. To this rejoinder the plaintiff demurred, and the demurrer was overruled by the court, and leave given to the plaintiff to answer over, which was declined; and thereupon judgment was rendered against him for the costs of suit. From this judgment the plaintiff brings the cause to this court by writ of error, and assigns for error the overruling of the plaintiffs demurrer to the defendants’ plea and rejoinder respectively. The contract being executory, imposed no legal obligation, and could not be enforced by either party under our Statute of' Frauds, which provides that no action shall be brought whereby to charge any person upon any contract for the sale of lands,. [386] tenements, or hereditaments, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized. Bev. Code, 358, art. 1. This statute contains no exceptions in regard to such contracts, and this court has repeatedly decided that it is not for us to create exceptions where none exist in the statute. Beaman v. Buck, 9 S. & M. 207; Box v. Stanford, 13 S. & M. 93. If this contract be not obligatory, the plaintiff was entitled to the money which he paid. The defendants could have a right to the money only in the event that the contract was valid; and .as their right to the money advanced depends upon the validity of the contract, it must stand or fall with it. Beaman v. Buck, 9 S. & M 211. But even if the contract had been valid, the recovery of the land by the defendants in the action of ejectment amounted to a rescission of it, and justified the plaintiff in bringing this action for the recovery of the money advanced upon it. We have arrived at the conclusion that the court below erred in overruling the plaintiff’s demurrers to the defendants’ plea and rejoinder. The judgment must therefore be reversed, the demurrers sustained, leave given to the defendants to answer over to the «declaration, and the cause remanded.