84 Ky. 635 | Ky. Ct. App. | 1886
delivered the opinion of toe court.
The appellant Camp, being the owner of a tract of land in the county of Jefferson, sold it to the appellee Moreman, by a written contract signed by both parties, for the sum of $1,550, the payment to be fixed on such time as the appellee and the Mutual Insurance Company might agree. This was, in substance, the written agreement, and the insurance company having a lien by mortgage on the land, it was necessary to consult its wishes as to the time of payment. In a day or two after the contract was made, Moreman and Camp applied to the officers of the insurance company, and they signed a writing, agreeing, in substance, to take one-third cash and the balance in one and two years, with interest, to which all the parties assented, and both writings were delivered to the appellee Moreman. The latter refused to comply with the contract, and Camp instituted this action for a specific performance. A demurrer was sustained to the petition On the ground that the contract was within the Statute of Frauds, and the case dismissed.
The chancellor below held: That as the first writing signed by Camp and Moreman did not fix the time of payment, but left it open, it failed to satisfy the statute. 2. That the writing signed alone by the insurance company did not supply the defect, because it could not be connected with the original contract without the aid of parol testimony. That if the writing signed by the insurance company -had also been signed by More-man, it might then be held to be one contract.
Here the terms of the contract, including a description of the land sold, and the price to be paid, and that the Mutual Insurance Company should regulate the time of payment, are fully set forth in the writing. This was a full and complete contract between these parties, and contained all the stipulations by which the one sold and the other purchased. If the insurance company had refused to give its consent to accept the notes of the appellee, or to fix the time of payment, the contract would have then terminated,. not because it was within the Statute of Frauds, but because the party holding the lien declined to accept the notes of Moreman, or to agree with the parties as to when the payments should be made. Is not the written consent of the company, signed and delivered to Moreman, a part of the original contract, as much so as if the officers of the company had been present and signed the original contract when made? If the two had been joint owners of the property, instead of one holding
An agreement between parties, by which one sells to the other land, describing it, is a sufficient memorandum, if in writing, to take the case out of the statute, and an averment of the consideration may be made upon a petition for specific performance, and shown by parol.
In the case of Stark v. Wilson, reported in 3 Bibb,
In this case there were two writings; the first between the vendor and the vendee; the second from the lien-holder entitled to the money, who, by the terms of the original agreement, was to fix the time of payment. It did so, and both writings were accepted, and are binding on the parties.
We are aware that cases may be found under the English statute, and in some of the States where the Statute of Frauds is similar to ours, holding a contrary rule; but the rigid and strict construction of its language has never been followed by this court, the object of the statute being accomplished when the land sold is sufficiently described in the written agreement to enable the chancellor to decree the conveyance without resorting to parol evidence for that purpose; and there are exceptions even to this rule. The language used by some of the writers on this subject,, and that may be
When the writing shows the land sold, the consideration may be established by parol; that is, the amount and when to be paid. In this case, however, both writings are one, and if not, the right of the appellant to enforce the contract upon the facts alleged is manifest.
Judgment reversed, and cause remanded for proceedings consistent with this opinion.