32 Vt. 355 | Vt. | 1859
The contract or promise upon which the plaintiff’s special count is founded-, being admitted by the demurrer to be wholly a parol undertaking, is clearly within the statute of frauds. The promise as stated was that “ he, the said defendant, would deed the said premises and give good title thereto to whoever the said plaintiff should sell the same to within the one year as aforesaid-.” A plainer case oí a Contract for the sale of lands Could scarcely be conceived.
The plaintiff claims to support his suit mainly upon the ground’ that it is brought to recover the price or consideration of the land conveyed by him to the defendant.
Notwithstanding the general terms of the statute of frauds, it has always been held that when land has been sold and conveyed to the purchaser, the seller may maintain an action to recover the price, though not evidenced by any Writing. But this is upon the ground that all of the contract which is required by the statute to be in writing, has been fully executed and performed, and that 'the promise to pay the money does not come within the statute.
This has been settled in this State by tile case of Hibbard & Wife v. Whitney, 13 Vt. 21. There the parties contracted by parol to exchange lands. The plaintiff conveyed to the defendant, according to the contract. The defendant conveyed to the plaintiff a portion of the lands agreed to be conveyed by him, but refused to Convey the residue. It was held an action could not be maintained on such promise and refusal. The same is fully sustained by the Cases cited by the defendant from Maine and Massachusetts. The plaintiff claims this case is taken ont of the operation of the statute by a part performance, but it s'eems to us not such a case 'of part performance as has been held to have that effect even in equity. The defendant had paid the full consideration he was to pay to the plaintiff and received a conveyance from him. The further contract was that if the plaintiff could find a purchaser who would pay more than the defendant paid the plaintiff, the defendant would deed to such purchaser, and that the plaintiff' should have half such excess of price. It seems wholly a distinct independent stipulation, as if he had agreed to reconvey to the plaintiff on the payment of a certain sum. If it could be regarded as a case of part performance, that does not commonly enable a party to sustain an action at law, but only for relief in equity upon the ground of fraud.
The plaintiff relies much on the case of Hodges & Wife v. Greene, 28 Vt. 358, as sustaining his case. He claims that case to establish that in all contracts for the sale of lands or any realty interest, required by the statute to be in writing, a tender or offer of performance by the seller, though refused by the purchaser, is such an execution of the contract as will enable the seller to recover the price by a suit at law. We fire aware that such an opinion has to some extent obtained from that case as reported in
The judgment of the court below was correct, and the same is affirmed.