Finucane v. Kearney

The Chancellor. The bill states that on the 28th of January, 1835, the complainant, together with one J. W, Barnes, contracted with Isaac Caldwell for the purchase of lot No. 2, in square No. 2 south, in the town of Jackson; that said lot belonged jointly to said Caldwell and one James C. Dickson; that he and said Barnes executed their two several promissory notes for the consideration money, payable to said Caldwell and Dickson, one due on’ the 1st January, 1836, the other on the 1st January, 1837, and that he received a bond to make title when the purchase money should be paid. The bond upon its face purports to be the joint bond- of Caldwell and Dickson, but is signed by Caldwell alone, from whom it was received. The bill alleges that Dickson agreed to sign the bond, but was prevented from doing so by his death; that the complainant was put in possession of the lot. by Caldwell and Dickson; that Dickson ratified and confirmed the sale by subsequently transferring to Caldwell his interest in the notes aforesaid, as by permitting lasting and valuable improvements to be made on the lot; that he has fully paid off and discharged the purchase money; that the complainant has purchased out the interest of Barnes to said lot; that Caldwell and Dickson are both dead. This bill is filed against their heirs and legal representatives, to enforce a conveyance of the title to said town lot. To this bill two of the defendants, Joseph W. Miller and Martha his wife, (who is one of the heirs of James C. Dickson,) have filed a demurrer, and upon [68] that demurrer the case is submitted, according to the practice of this court. The defendants insist that the case, as to them, is within the statute of frauds, the contract resting in parol; and it is assumed as a general position, that part performance of such a contract is not sufficient to take it out of the operation of the statute referred to. Whatever diversity of opinion may exist as to the policy of courts of equity sanctioning any departure from the strict terms of the statute of frauds, yet exceptions to its operation have been so long and so uniformly sustained by an almost unbroken current of both English and American authorities, that I do not feel myself at liberty to strike out any new rule upon the subject. The ground upon which these exceptions have been admitted is, that, to permit a party, under peculiar circumstances, to avail himself of the statute, would be a fraud upon the opposite party, and a perversion of the object of the statute itself. 1 John. Ch. R. 131; 2 ibid. 111; 14 Ves. 386; 14 John. R. 15; 4 Pet. U. S. Rep. 311. What facts and circumstances will create such an exception, has been a question of some difficulty and embarrassment in practice, upon which the authorities are not altogether uniform; as, whether the payment of a part or the whole of the purchase money was sufficient, I consider the weight of authority against either branch of the proposition, where there is no other circumstance to induce the interference of the court. 3 Ves. 379, 380; 1 Sch. and Lef. 40, 41. But where there has been a payment of the purchase money, and the vendee has been let into possession under the contract, I have found no respectable authority that did not hold these circumstances sufficient to take the case out of the operation of the statute, and to warrant a decree for a specific performance of a parol contract. 3 Atk. 1; 2 Ball. & B. 348; 6 Har. & John. 288; Ellis v. Ellis, Dev. Eq. 180; Wilde v. Fox, 1 Rand. 165; 1 Blackf. 58; 6 Wheat. 528; 1 Bin. 218; 2 Cai. Ca. E. 87. In the case now before me, it is distinctly alleged that the entire purchase money has been paid, and that possession of the lot was given under the contract, thus bringing it within the pale of the authorities referred to. There is another allegation in the bill, which I think places it beyond the reach of the statute of frauds. It is alleged that Dick [69] son agreed to sign the bond, but was prevented by his death. An acknowledged exception to the statute is where the agreement is intended to be reduced to writing according to the statute, but is prevented by the fraud of one of the parties. New. on Con. c. 10, 179 to 197; 1 P. Vm. 618. And so I apprehend the rule would be, where, as in this case, the contract was written out and one of the parties promised to sign it, but was prevented by inevitable accident. See 2 Story’s Eq. 79. It is the peculiar province of courts of equity to relieve against accidents as well as fraud. It is alleged also that the complainants have made valuable improvements upon the lot. This has been repeatedly held as an act of part performance. 3 Ves. 378; 1 John. Ch. 274; 3 Paige, 645.— Whether these allegations can be proved, is a question that does not arise in the present inquiry. A part performance has no other effect, except that the plaintiff is thereby let in to prove the contract otherwise than by writing. 1 Pet. C. C. Rep. 380. I think, then, that the grounds of demurrer are not well taken. Although a bill seeking the enforcement of a parol contract for land, without other circumstances, is a proper subjeck of demurrer, yet if the bill; besides the agreement, states matter in avoidance of the statute, such as part performance, a demurrer will not lie: Harris v. Knickerbacker, 5 Paige, 638. The demurrer must be overruled, with leave to answer.