192 Ky. 616 | Ky. Ct. App. | 1921
Opinion of the Court by
— Affirming.
The judgment in this action was for the defendant, who is the appellee- here, and the plaintiff, who is the appellant here, has appealed. It is gathered from the pleadings, and from a stipulation of facts, upon which the action was tried, that on the 12th day of March, 1919, the plaintiff, by a verbal contract, sold a tract of land and a number of articles of personal property to the defendant, and presumably in consideration óf plaintiff’s promise to convey the land to defendant and to deliver to him the personal property, the defendant promised, as a partial and first payment on the land and personalty,
The plaintiff insists that the check was a sufficient memorandum in writing to take the contract out of the statute of frauds. The statute, so far as is necessary to bg here considered, is as follows:
“No action shall be brought to charge any person, upon any contract for the sale of real estate . . . unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof be in writing and signed by the party to be charged therewith, or by his authorized agent. . . . ” There must in every transaction for the.sale of land, be a writing signed by the vendor, as he has been held to be the party “ to be charged therewith. ’ ’ Evans v. Stratton, 142 Ky. 615; City of Murray v. Crawford, 138 Ky. 25. A writing evidencing a sale of land makes an obligatory contract when signed by both parties, or when signed by the vendor alone, and is accepted by the vendee. In this case the check is signed only by the vendee, so far as the record demonstrates. Assuming that it was endorsed by the signature of the vendor, the words “as payment for land” in such a writing would not be a sufficient description of the thing sold to take the transaction*618 out of the statute of frauds. The memorandum required by the statute of frauds to constitute evidence of a sale of land is such a written declaration of the parties that the court will be relieved from relying on parol evidence to ascertain the subject of the contract. The words in the check would afford no means by which the property sold could be designated. Nor would- it identify the property. In such case the writing has invariably been held to be insufficient to take the transaction out of the statute of frauds. Campbell v. Preece, 133 Ky 572; Tyler v. Ontz, etc., 93 Ky. 331; Ellis v. Dedman, 4 Bibb 466; Fugate v. Hansford, 3 Litt. 262; Henderson v. Perkins, 94 Ky. 207.
The plaintiff, by a pleading filed nearly six months after the date of the transaction, offers to convey the land, by a general warranty deed, and to deliver the personal property to defendant, and avers his ability to convey a good title, and further avers that he tenders a deed, but the record does not contain the deed which was said to be tendered. This, however, would be unavailing, as a deed, alone, to take the transaction out of the statute would not -only have to be signed by the vendor, but would have to be accepted by the vendee. A verbal contract for the sale of land is not obligatory upon either the vendor or vendee, until a writing evidencing the sale, sufficient to satisfy the statute, has been executed by the vendor and accepted by the vendeé. Curnutt v. Roberts, 11 B. M. 42; McDowell v. Dunlap, 2 Mar. 33; Murray v. Pate, 6 Dana 357; Lewis v. Grimes, 7 J. J. M. 336; Fite v. Orr’s Assignee, etc., 8 K. L. R. 349, 1 S. W. 582; Allen v. Stailey, 119 S. W. 755; Todd v. Finley, 166 Ky. 546; Newberry v. Adams, 92 Ky. 26; Asher v. Brock, 95 Ky. 280. If a vendor, who is not obligated to perform a contract, because it is not in writing and signed by him, could make it obligatory upon a vendee, by tendering him a deed a great time afterward, would certainly be unfair. No legal obligation resting upon him to perform the contract, it should not be obligatory upon the vendee either. A contract which is not obligatory upon either party should not be made obligatory upon both, by the wish of one of the parties alone. The obligation must be mutual. Of course, it is not meant to be held that a verbal contract for the sale of land shall not be executed by the parties, but it is void, because there is no such evidence in existence, as the statute requires, to be made in order to prove it.
The judgment is, theref o're, affirmed.