Harris v. Hardwick
137 P. 581
N.M.
1913
Check Treatment

OPINION OP THE COURT.

ROBERTS, C. J. —

There are several assignments of error in this case by appellant, all presenting ,however, but one proposition worthy of consideration, which may •be stated as follows :■ — Under the Statute of Frauds, which is in force in this State, “no action shall be brought upon any contract or sale of lands, tenements or hereditaments,, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.” Appellant here urges that a recovery .in this case is precluded by the above provision of the statute, because the subsequent modification of the written contract was in parol, and was, therefore, not enforcible. If appellee was seeking to compel appellant to carry out the terms of the parol agreement to become a purchaser at the foreclosure sale, the Statutes of Frauds could probably be successfully invoked as a defense to the action. In this case, however, the contract was fully performed by appellee, and likewise, by appellant, except the payment of the consideration. Appellee caused the mortgage to be foreclosed and the property to- be sold as he agreed to do. Appellant purchased ihe property at the sale, and took possession of the same, which he still retains, all under parol contract.

2 “The statute is no bar to an action for the price of land actually conveyed where the deed has been accepted or title has otherwise passed, although the grantor could not have been compelled to convey, or the grantor to accept a deed, because the contract was oral.” 20 Cyc. 294, and ease cited.

The case of Arnold v. Stephenson, 79 Ind. 126, was almost identical with the case at bar. There a judgment has been recovered against A and an execution levied upon his land. Prior to the sale under the execution, B agreed verbally with A to buy in the land at the sale and to pay off a mortgage upon the land and certain other charges and to pay to A the difference between the amounts so paid and the stipulated price of $6,000.00. B purchased the land at the sale, paid only a portion of the debts which he agreed to assume, and refused to pay A any further money under the agreement. B took possession under the sheriff’s deed, and was in possession at the time of the institution of the suit. To a complaint reciting the above facts, a demurrer was interposed and sustained. Judge Elliott, speaking for the Court, says

1 “We think that in cases of the class to which the one under consideration and that cited belong, it should be held that, where the purchaser receives a sheriff’s deed, and acquires full title and complete possession of the land, he cannot escape liability upon the ground that the statute of frauds prohibits the enforcement of verbal contracts for the sale of an interest in land. We accordingly 'hold that where the agreement is so far performed that the purchaser acquires a perfect title and full possession of the property, the vendor may recover the stipulated price. This is -in accordance with the rule stated by Mr. Browne, ‘when so much of a contract as would bring it within the Statute of Frauds has been executed, all thé remaining stipulations become valid and enforcible, and the parties to the contract regain all the rights of action they 'would have had at common law/ Browne Statute of Frauds, sec. 117. This rule secures justice. Appellee obtained a title by the sheriff’s sale, and the most rigid adherence to the requirements of the statute could have given him nothing more. The execution of the contract is really none the less complete because the land passed by the sheriff’s deed instead of by the conveyance of appellant. Schenck v. Sithoff, 75 Ind. 485. Appellee has secured all he bargained for, and he ought to pay what he

promised. It is so well settled, that the Statute of Frauds cannot be made the means of perpetrating a fraud, that authorities need not be cited. Appellee, under the facts, parted with a substantial interest in his property, upon the faith of appellant’s promise. Appellant received all that he asked or required under the contract, for his promise and the statute cannot be interposed to enable him to receive the benefit without yielding the agreed consideration.

Finding no available error in the record, the judgment of the trial court is affirmed, and it is so ordered.