Obrázky stránek
PDF
ePub

accruing from the sale should be equally divided between them, is valid though not in writing. Pitman v. Hodge, 67 N. H. 101 (36 Atl. Rep. 605). Where the guarantor of notes secured by mortgage which was insufficient security, orally agreed with the holder that if he would foreclose the mortgage and bid in the property for the full amount due, if such foreclosure did not result in the collection of the money by redemption of the premises, he would pay the holder the amount due on the notes and costs of foreclosure, the property then to be deeded to him, it is held that this contract is within the statute of frauds and was not taken out by the fact that the holder of the mortgage foreclosed it and bid in the property in his own name for the full amount due. Veazie v. Morse, 67 Minn. 100 (69 N. W. Rep. 637).

Sec. 849. As to what contracts are within the statute of frauds-Statutes construed and applied. Upon a rehearing in the case of McIntosh v. Hodges, 110 Mich. 319 (68 N. W. Rep. 158; Ballards' Law of Real Property, Vol. V, § 818), it is held that under the statute of frauds of Illinois, in force at the time the lease in question was made, it cannot be sustained as a valid lease. McIntosh v. Hodges, 110 Mich. 319 (70 N. W. Rep. 550). Under Minn. Gen. Stat. 1894, § 4212, an oral contract as to estates or interest in lands is void. Pierce v. Clarke, 71 Minn. 114 (73 N. W. Rep. 522). Overruling on this point, Hagelin v. Wacks, 61 Minn. 216 (63 N. W. Rep. 624). See opinion for particular contract held to be within the statute. Agreements concerning party walls and partition fences are within the statute. Weems v. Mayfield, 75 Miss. 286 (22 So. Rep. 892), applying Miss. Ann. Code 1892, § 2434; Tillis v. Treadwell, 117 Ala. 445 (22 So. Rep. 983). Construing and applying Neb. Comp. Stat., ch. 32, §§ 3, 5, 25, it is held that the contract of an agent in the name of his principal for the sale or leasing of lands for a period exceeding one year, is void unless the authority of the former is evidenced in writing. O'Shea v. Rice, 49 Neb. 893 (69 N.W. Rep. 308). A parol grant of the right to take water from a ditch, is the conveyance of an interest in lands, within the meaning of Wis. Rev. Stat., § 2302. Case v. Hoffman,

Wis. (72 N. W. Rep. 390).

Sec. 850. As to what contracts are not within the statute of frauds. Judicial sales are not within the statute of frauds and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by him or his agent. Robertson v. Smith, 94 Va. 250 (26 S. E. Rep. 579; 64 Am. St. Rep. 723). Citing, Andrews v. O'Mahoney, 112 N. Y. 567 (20 N. E. Rep. 374); Warfield v. Dorsey, 39 Md. 299 (17 Am. Rep. 562). Where one purchases lands under an agreement with a broker having them for sale, that he will refund to such purchaser the amount of his commission as a reduction in the price, such contract is not within the statute of frauds and the purchaser may maintain an action against the broker for the sum due him. Spengeman v. Palestine Bldg. Ass'n, 60 N. J. L. 357 (37 Atl. Rep. 723). The priority of liens may be fixed by a parol contract between the holders thereof. Townsend v. White, 102 Ia. 477 (71 N. W. Rep. 337); Loewen y. Forsee, 137 Mo. 29 (38 S. W. Rep. 712; 59 Am. St. Rep. 489). Citing, Linville v. Savage, 58 Mo. 248; Rigler v. Light, 90 Pa. St. 235. In Kentucky it is held that a parol contract for the sale or conveyance of land is not void, and that the defense of the statute of frauds may be waived by one charged with the performance of such a contract regardless of the objections of his creditors. Walker v. Walker's Assignee, Ky. (41 S. W. Rep. 315). An oral agreement between two parties to prospect together and share alike the benefits of any discovery or location of mining properties, water rights, and mill sites on the public lands, is not within the statute of frauds. Hill's Wash. Code, § 1422, applied. Raymond v. Johnson, 17 Wash. 232 (49 Pac. Rep. 492; 61 Am. St. Rep. 908). Citing, Gore v. McBrayer, 18 Cal. 583; Hirbour v. Reeding, 3 Mont. 15; Murley v. Ennis, 2 Colo. 800; Welland v. Huber, 8 Nev. 203. Substantially the same is held in New Mexico. Laughlin and Bantz, JJ., dissenting. Eberle v. Carmichael, 7 N. M. 696 (47 Pac. Rep. 717). As to the validity of parol agreement by a grantee to assume and pay a mortgage, see Mortgages.

Sec. 851. Sufficiency of memorandum. A memorandum of an auctioneer's sale, made by him some time after the sale, after the revocation of his authority of which the

vendee had notice, is insufficient. Quinzel v. Schmidt, N. J. L. (38 Atl. Rep.6(5). It is a sufficient memorandum of an auction sale of real estate for the auctioneer to write the name of the last and highest bidder on the side of an advertisement for the sale of the land with the amount of the bid. Proctor v. Finley, 119 N. C. 536 (26 S. E. Rep. 128). A memorandum which does not state the consideration and fails to give a sufficient description of the property, does not satisfy the statute. Cooley v. Lobdell, 153 N. Y. 596 (47 N. E. Rep. 783). A memorandum designating the property sold by a name without giving the state or county in which it lies, is insufficient. Wood v. Ziegler, 99 Tenn. 515 (42 S. W. Rep. 447). A receipt which is claimed to be for a part of the purchase price, which does not so identify the lot of land to be conveyed that it can be distinguished from other lots, and contains no statement by which the intention of the parties with respect to the land can be ascertained, is not a sufficient memorandum. Lippincott v. Bridgewater, 55 N. J. Eq. 208 (36 Atl. Rep. 672). A memorandum will not be held insufficient on account of not containing a technically accurate description, where the writing or writings relied upon show in themselves that both parties referred to the same property, the identity of which can be established by parol. Peay v. Seigler, 48 S. C. 496 (26 S. E. Rep. 885; 59 Am. St. Rep. 781). A contract of sale, in which a vendor agrees, "if desired by the purchaser, to give said deed and abstract when onehalf of said purchase price is paid, and to accept a purchase money mortgage, drawing interest at the rate of 6 per cent. per annum for the other one-half of said purchase price," is not void under the statute of frauds on account of being incomplete, where previous provisions specify the amount of the purchase price, its division into payments, and the times at which the same are to be made. Proctor v. Plumer, 112

Mich. 393 (70 N. W. Rep. 1028). Where the statute of frauds requires a contract for the sale of land to be evidenced by a written instrument signed by the vendor,it is held that a written promise, executed by the vendee, to pay a certain consideraation when he receives a deed from the vendor, will not sustain an action for the price named, though there was a tender of a sufficient deed, but without a preceding oral acceptance. Kroll

v. Diamond Match Co., 113 Mich. 196 (71 N. W. Rep. 630). A note or memorandum of contract for the sale of real estate, in the form of a letter addressed to a third person, which describes the land to be conveyed and which admits payment in full of the contract price, is sufficient under the statute of frauds, although the amount of such contract price and the kind of deed to be executed are not stated; and unless the contract evidenced by such note or memorandum is affected by fraud or other inequitable circumstance, the courts are bound to order its specific performance. Miller v. Kansas City, Ft. S. & M. R. Co., 58 Kan. 189 (48 Pac. Rep. 853). A written petition presented to the city council for the privilege of laying a private sewer in the public streets, specifically describing the route, followed by a resolution of the council referring the matter to a committee and the execution of a bond by the · petitioner referring to the petition and its approval,constitutes a contract in writing for the use of the streets sufficient to satisfy the statute of frauds. Stevens v. Stevens v. City of Muskegon, 111 Mich. 72 (69 N. W. Rep. 227; 36 L. R. A. 777). A provision in a lease, that the lessor is to give the lessee 60 days' notice of his desire to sell the premises and that the latter is to have" the first opportunity to purchase said premises provided he will pay as much as any other person," is sufficient to take the contract out of the statute of frauds. Marske v. Willard, 169 Ill. 276 (48 N. E. Rep. 290). For particular letters by vendor to his agent and receipt by agent to the purchaser held to constitute a sufficient memorandum, see Peay v. Seigler, 48 S. C. 496 (26 S. E. Rep. 885; 59 Am. St. Rep. 731). Mass. Pub. Stat., ch. 78, § 1, cl. 4, applied-particular memoranda held insufficient to satisfy the statute. John F. Fowkes Mfg. Co. v. Metcalf, 169 Mass. 595 (48 N. E. Rep. 848).

Sec. 852. Sufficiency of memorandum-Signing. A contract of sale is binding on the seller where it is signed alone by him, and a vendee accepting it is bound for its performance. Monongah Coal & Coke Co. v. Fleming, 42 W. Va. 538 (26 S. E. Rep. 201). The signature of the vendor alone to a contract for the sale of land is sufficient to satisfy the statute of frauds. Borie v. Satterthwaite, 180 Pa. St. 542 (37 Atl. Rep. 102). It is sufficient for a memorandum to

be signed by the parties to be charged. The resolution of a board of directors of a corporation, duly signed by its president and secretary, which sufficiently set forth the terms of the contract is a sufficient compliance with the statute of frauds. Central Land Co. v. Johnson, 95 Va. 223 (28 S. E. Rep. 175).

Sec. 853.

Parol gifts of real estate. A parol gift of lands by parents to their son if he would move thereon and improve the same, may be specifically enforced by him, or his heirs, where he has performed all the conditions. Briggs v. Briggs, 113 Mich. 371 (71 N. W. Rep. 632); Hubbard v. Hubbard, 140 Mo. 300 (41 S. W. Rep. 749). Where parents agree witn their son-in-law to give him certain land when they are done with it if he will move upon and improve it, he may maintain an action for their breach of the contract by conveying the land to another. Albright v. Hannah, 103 Ia. 98 (72 N. W. Rep. 421). Particular evidence held sufficient to establish a parol gift of land. Ward v. Edge, 100 Ky. 757 (39 S. W. Rep. 440; Loney v. Loney, 86 Md. 652 (38 Atl. Rep. 1071). Where, after several years of part performance by a son, of a parol contract between him and his father, by which, in consideration of his doing certain things, the father is to give him all his real and personal property at his decease, the father transfers by writing one-half of his property to the son, it is held that the parol contract as to the remainder of the property is not merged in such writing, but may be specifically enforced upon the father's decease. Pike v. Pike, 69 Vt. 535 (38 Atl. Rep. 265).

Sec. 854. Part performance. A sufficient part performance of an oral contract between persons exchanging lands, by which one party agrees to reduce an incumbrance on the land to be conveyed by him, is shown by the fact that they exchanged deeds. Bennett v. Knowles, 111 Mich. 226 (69 N. W. Rep 491). A parol agreement between tenants in common not to seek partition of their land, may be enforced where it has been so far performed that to permit a cotenant to repudiate it, would of itself be a fraud. Martin v. Martin, 170 Ill. 639 (48 N. E. Rep. 924; 62 Am. St. Rep.

« PředchozíPokračovat »