159 Ky. 359 | Ky. Ct. App. | 1914
OPINION of the Court by
Affirming.
Prior to July 22,1912, the appellant, B. E. Grace, contracted to sell to the appellees, J. PI. Gholson and B. E. Bayles, his undivided half of a tract of land containing 173 acres, lying in Ballard county, at the price of $2,-000.00. Of this amount appellees agreed to pay $1,245.00 in satisfaction of the first annual premium on a policy of insurance of $35,000.00 which appellant agreed to take upon his life in the Citizens’ National Life Insurance Company through appellees as its agents; and for the remaining $755.00 of the purchase price to be paid for the land, appellees agreed to execute to appellant their note, payable twelve months after date, with six per cent interest from date, its payment to he secured by a vendor’s lien retained on the land. There was a mortgage lien of $4,000.00 upon appellant’s undivided half of the 173 acres of land and two other small tracts owned by him, and this lien appellant agreed to immediately have released upon the undivided half of the 173 acres purchased by appellees. It was further a part of the contract between the parties that upon the delivery to appellant of appellee’s note for $755.00 and the insurance policy of $35,000.00 upon appellant’s life, the latter, together with his wife, would execute and deliver to appellees a deed of general warranty conveying to them, unencumbered, the fee simple title to his undivided half of the
The contract in question was never reduced to writing but was wholly verbal, and upon appellant’s failure to execute the same according to its terms appellees brought this action in the Ballard circuit court to recover of appellant the $1,245.00 which they paid for him to the Citizens’ National Life Insurance Company as the first annual premium on the policy of $35,000.00 issued to him by it; and to obtain a cancellation of the $755.00 note which they executed to him for the remainder of the consideration of $2,000.00 they were to pay for the land.
The answer of the appellant admitted that the contract for the sale of the land was verbal and therefore unenforceable; also appellees’ right to the cancellation of the $755.00 note, but denied their right to recover the $1,245.00 premium which had been paid by them for appellant on the policy of insurance of $35,000.00 issued on his life by the Citizens’ National Life Insurance Company.- On the hearing the circuit court granted appellees the entire relief sought by them, that is; it cancelled the note and adjudged to appellees the $1,245.00, with six per cent interest from August 12, 1912, gave them a lien for its payment upon the undivided half of the 173 acre tract of land appellant had contracted to convey them, and directed its sale in satisfaction thereof. Appellant complains of that judgment, hence this appeal.
It being admitted by the pleadings that the contract with respect to the sale of the land was not in writing, it necessarily follows that it was within the Statute of Frauds (Section 470, Kentucky Statutes), therefore it was void ab initio and unenforceable at the suit of either party to the contract. While the evidence shows that after the date of the parol agreement made by the parties there was a deed executed by appellant, by which he claims to have made a conveyance of the land to appel
“The question presented is, substantially, whether a vendor, when the contract for the sale of land is merely verbal, and not reduced to writing, can at his option, by tendering an execution of the contract upon his part, render it valid and enforcible, notwithstanding at the tim,e it was entered into, it was within the operation of- the Statute of Frauds, and no action could be maintained upon it by either party. If such a right existed in the vendor, it in effect places it in his power, at his election, to make every verbal contract for the sale of land binding upon the parties, although no such right exists in the vendee. # * * A verbal contract for the sale of land, is not legally obligatory upon either party, until some writing evidencing the sale, and sufficient to take the contract out of the operation of the statute of frauds, is executed by the vendor and accepted by the purchaser.”