Butler v. Threlkeld
117 Iowa 116
Iowa
1902
Check Treatment
Ladd, O. J. —

1 The lease as written did not contain an option by which defendant was accorded the right to purchase the land within the term fixed. It is contended by the defendant, however, that a stipulation to that effect was omitted by mutual mistake, and that the lease should be so reformed as to include it. The only obstacle in the way seems to be the statute of frauds, under which oral evidence is not competent to establish contracts “for the creation, or transfer of any interest in lands, except leases for a term not exceeding one year.” Section 4625, Code. It will be observed that no reference is made in the instrument as written to an option, and it is proposed, first, to prove the oral agreement by which de*118fendant might buy if he should so elect, and, second, because of its omission through mutual mistake, have this injected into the lease relating to the renting of the land and an agency to sell.

That a court of equity may correct a mutual mistake in a contract by including the part omitted and then enforce the contract as reformed, notwithstanding the apparent prohibition of the statute of frauds, seems to have been settled by this court in the early case of Ring v. Ashworth, 3 Iowa, 452. That ruling has the support of many decisions and most text-books. Gillespie v. Moon, 2 Johns. Ch. 585 (7 Am. Dec. 559); Wall v. Arrington, 13 Ga. 88; Mosby v. Wall., 23 Miss. 81 (55 Am. Dec. 71); Philpott v. Elliott, 4 Md. Ch. 273; Tilton v. Tilton, 9 N. H. 385; Moale v. Buchanan, 11 Gill & J. 314 Bellows v. Stone, 14 N. H. 175; Bradford v. Bank, 13 How. 57 (14 L. Ed. 49); Ruhling v. Hackett, 1 Nev. 365; Caley v. Railroad Co., 80 Fa. 363; Smith v. Jordan, 13 Minn. 264 (Gill, 246) (97 Am. Dec. 232); Hunter v. Bilyeu, 30 Ill. 228; Schwass v. Hershey, 125 Ill. 653 (18 N. E. Rep. 272); Fishack v. Ball, 34 W. Va. 644 (12 S. E. Rep. 856); Redfield v. Gleason, 61 Vt. 220 (17 Atl. Rep. 1076, 15 Am. St. Rep. 889); Strickland a. Barber, 76 Mich. 310 (43 N. W. Rep. 449). Notwithstanding this array of authority, the writer would be inclined, but for the former decision of this court, to the view that relief in such a case should be denied. The court ought not to write into a contract that which, to be enforceably the law, required the parties not only to agree to, but to reduce to writing, in order to be enforceable. It seems like an indirect attempt to enforce the specific performance of an oral agreement for the sale of land, and this is the conclusion. reached by a number of eminent courts. Elder v. Elder, 10 Me. 80 (25 Am. Dec. 205); Jordan v. Fay, 40 Me. 130; Glass v. Hulbert, 102 Mass. 24 (3 Am. Rep. 418); Pieree v. Colcord, 113 Mass. 372; Osborn v. Phelps, 19 Conn. 63 (48 Am. Dec. 133); Miller v. Chetwood, *1192 N. J. Eq. 199; Davis v. Ely, 104 N. C. 16 (10 S. E. Rep. 138, 5 L. R. A. 810, 17 Am. St. Rep. 667); Climer v. Hovey, 15 Mich. 18; Webster v. Gray, 37 Mich. 37; Dennis v. Dennis, 4 Rich Eq. 307; Westbrook v. Harpeson, 2 McCord, Eq. 112; Whitacre v. Vansehoiack, 5 Or. 118. See note to Woollam v. Hearn, 2 White & T. Lead. Cas. Eq. 484; 1 Sugden Vendors, 243; 2 Wharton, Evidence, sections 90-94, 1024. These decisions are in accord with the doctrine as accepted in England, tersely stated by one of the judges thus: “In case of an executory agreement, first to reform, then to decree an execution of it, would be virtually to repeal the statute of frauds.” Townsend v. Strangroom, 6 Ves. 328. But Ring v. Ashworth, supra, is decisive and, as it is well sustained by authority, should be followed. For a review of the cases see 24 Am. Law Beg. 81.

2 II. -A careful reading of the record has convinced us that as part of the agreement to lease, the defendant to was have the option of buying at the price of $3,300 with per cent, interest per annum, and that this part of such 7£ agreement was omitted from the written contract by mutual mistake. We are further satisfied that in the fall of 1893, and again in 1894, the defendant proposed to exercise this option in the purchase of the land, and that the plaintiff on each occasion refused to carry out his contract. Having refused performance, a tender of the purchase price and the demand for a deed, as these would have been of no avail, were unnecessary. No useful purpose would be subserved by a discussion of the evidence It will suffice to say that we are content with the conclusion reached by the district court, and its decree is aeeirmed.