1 Shan. Cas. 622 | Tenn. | 1876
Lead Opinion
delivered tbe opinion of tbe court.
Johnson sold Biggs a tract of land, executing a memorandum of tbe contract, in which the only description of
Before the suit was brought in which the contract was held inoperative, Biggs had brought this suit for the value of a large amount of lumber paid and delivered to Johnson as part consideration for the land under the agreement for sale. The suit was brought against John P. Johnson and Ellis & Johnson (to whom John P. Johnson had sold the lumber), who had sold part of it, and were in possession of the balance.
The court below charged, in substance, that before the plaintiff could recover the consideration paid under the contract, he must have either restored Johnson, the vendor, to possession of the land, put him in statu quo, as before the trade, or made a bona fide tender of such possession.
The correctness of this proposition of law is the legal question to be disposed of. On the one hand it is contended by the plaintiff Biggs that the contract is absolutely void, that no legal rights can be predicated of it, and therefore either party may disaffirm what has been done. The one sues for the consideration paid, the other to recover the possession of the land occupied by the vendee under the agreement of the parties.
Without going into an analysis of the various cases in our books on the question of whether parol contracts, or contracts not complying with the statute of frauds are void, or voidable, we deem it sufficient to say that it is well settled by a large mass of decisions that such contracts have no legal force or obligation binding on either party. That is, neither the vendor nor vendee can bring any action by which such agreement can be enforced, either directly or indirectly. It follows that such a contract is void in law if executory, as an obligation to convey the land sold; if executed, it 'would fail to convey the land. This element of failure of binding obligation would apply equally to
It was said by this court in the case of Redmond v. Bowles, 5 Sneed, 553, that “either party may disregard the informal contract as soon as made, and the one sue for any money that may have been paid, and the other for the land. It was held by this court in Sullivan v. Ivey, 2 Sneed, 489; Beard v. Bricker, 2 Swan, 50, that these rights accrue upon an abandonment and repudiation of the contract by either party, and notice of such abandonment and repudiation given to the other party. This, we think, is as far as any of our cases fairly considered go. The prim ciple on which the: requirement of notice of abandonment, of the contract goes is, that the parties are in possession rightfully and by the assent of the other, the one of the land, the other of the consideration; -neither ought, therefore, to be subject to a suit as holding wrongfully, until the agreement is abandoned or repudiated, and notice had of the fact. When notified of the fact of abandonment of the invalid contract, each party, knowing it has no binding force in. law, is bound then to restore the property received under it to the other, and if he fails, is liable to a proper action to enforce this liability. This follows from the cases cited, 2 Swan and 2 Sneed, where it is held that the agreement may be abandoned by either party, and after notice of the fact the vendee in possession becomes a wrongdoer, his holding is unlawful, and he may be turned out of possession by an action of unlawful detainer by the vendor. We have no case in a court of law that makes a tender of the land back or restoration of the possession, a condition precedent to recovery of the money or property paid under an invalid contract; but a number where such recovery has been had without such tender. In Hurst v. Means, 2 Swan, 599, Judge Totten says: “No right or duty can be predicated upon a void contract; it is the same as if it had not been made. Therefore, if a party enter upon land and
It is proper to say, that in all cases of this kind the better practice is to file a bill in the chancery court, disaffirming the contract, where all parties being before the court the possession of the land can be restored and account had of the purchase money, with an adjustment of the rents, thus doing complete justice in the case and avoiding the necessity of several suits for this purpose.
In addition to the above ground of error, we would be compelled to reverse this case on the facts, even though
As this case must go back for another trial, it may save future trouble to say that on the assumption that the title of the lumber had passed to Johnson — that is, that the delivery was complete, and the amount so delivered only to be ascertained — then Johnson and Ellis & Johnson, the purchasers, could not be held liable to Biggs. In a case where the contract was vitiated by fraud this court say: “If the vendor delivers goods with the intention that the property as well as the possession shall pass, a bona fide purchaser from his fraudulent vendee will hold the goods."’ Arendale v. Morgan, o Sneed, 713. We think this rale would apply with equal, if not more, force to a case like the present.
Beverse the case and remand for another trial.
Dissenting Opinion
delivered the following dissenting opinion.
I cannot concur in so much of the opinion of the majority of the court as holds the. purchaser by parol of land may, while in possession of the land and without restoration of the land or offer to restore, sue for and recover the amount paid by him on such purchase. While he remains in the occupation of the land, and in the receipt of the rents or profits, he is by these acts affirming the contract.
I am unable to understand how one may repudiate so much of a contract as prejudices him and hold to so much
Tbe purchaser ought not to be permitted to bold under a void contract, and at the same time deprive tbe other party to tbe contract of all its benefits be has not repudiated, until be has placed tbe other party as near 'as may be in statu quo.