Grisham v. Lutric, 76 Miss. 444

Grisham v. Lutric

76 Miss. 444 | Miss. | 1898

Woods, C. J.,

delivered the opinion of the court.

On the case presented in the record before us there is really only a single question for our consideration: Was the action of the trial court in declaring the trust deed of November 17, 1896, made by Harbour to Grisham, trustee, void, and in excluding it from the jury, correct?

While a verbal contract for the lease of lands for more than one year is nonenforceable, because within the statute of frauds, still the statute does not declare it void, but only declares that it, the contract, shall be nonenforceable in an action brought to charge a defendant or other party. But the present suit is not one brought against the defendants to enforce a verbal contract of lease for more than one year. It is not a suit brought by either of the parties to such lease against the other party thereto. The parties to the contract are neither asserting any claim based upon it, nor defending any action because the contract is within the statute of frauds. The attack upon the contract is made by way of defense in an independent proceeding between strangers to that contract, and it would appear to be well settled that attack by a stranger, in a collateral proceeding, is not allowable. If the parties to the contract, voidable at the election of either of them, which has been performed, do not repudiate it, ‘‘ third persons, having no interest in it, cannot be heard to question it in any collateral controversy. ” Chaffe v. Benoit, 60 Miss., 39. It seems equally well settled that the statute of frauds, as a defense, is personal to the parties to the contract, and is not available to a stranger to the contract in a collateral proceeding.

In Browne on the Statute of Frauds, sec. 135, we find this language: “As the statute of frauds affects only the remedy upon the contract, giving the party sought to be charged upon it a defense to an action for that purpose, if the requirements of' the statute be not fulfilled, it is obvious that he may waive such protection, or rather, that, except as he undertakes to avail himself of such protection, the contract is perfectly good *448against him. A third party cannot, in a case where his own obligations growing out of the existence of the contract in question are concerned, deny the obligation of the contract upon the party who was charged thereby, or take any benefit of the protection which such party could claim in an action brought upon it against himself.” And again, in sec. 138?, the same author says: “It has already been shown in this chapter that the statute does not make the contract void, but only allows a defense to jits enforcement, which defense is personal to the defendant and may be waived b3r him, and which no third party can assume that he will or would avail himself of so as in effect to give the third party the privilege of the statute.”

In Eeed on the Statute of Frauds, sec. 651, it is said: “No third person can set up the statute of frauds, for non constat that the parties will not voluntarity perform, onty the part3r to be charged can set up the statute,” and many authorities, cited in the note, support the text, and to these authorities we refer, as well as to those cited in the 8 Am. & Eng. Ene. L., 659, in support of the text of that work, which declares that “only parties to the agreement can take advantage of the defense of the statute.”

Under our view of the trust deed, erroneously held by the court below to be void, it is hardly necessary to add that the crops to be grown by the grantor named in that trust deed had a potential existence.

Reversed.