Higgins v. Haberstraw

76 Miss. 627 | Miss. | 1898

Whitfield, J.,

delivered the opinion of the court.

This is not an effort to specifically enforce the parol agree'ment. If it were it would, of course, be obnoxious to the statute of frauds. That agreement is, in effect, not to foreclose the trust deed, under the decree, but to adopt a substituted mode of performance, now completed. The agreement is used defensively, as a shield against the assertion of title fraudulently acquired in violation of the agreement and against the right to plead the statute of limitations. The agreement operates as an equitable estoppel to prevent these things, and the appellants then—the sale and the statute of limitations made unavailing by the estoppel—seek affirmatively to redeem, not by virtue of the agreement, but as heirs of their mother, the land descended to them. This is clearly the just view and the real effect of the parol agreement. And, in this view, it is not within the statute of frauds. It is not using parol evidence to establish the declaration or creation of a trust in any proper sense. It is, as held in Lee v. Hawks, 68 Miss., 671, using “parol evidence to prove, not a substituted contract, but the assent of the defendant to a substituted mode of performance, that performance being completed.”

The case falls within the principles of Lee v. Hawks, supra, and Perry v. McLain, 66 Miss., 145, where the court says: “Although the oral agreement to rescind the contract of sale was not such as a court would specifically enforce, it presents a good ground for refusal by the chancery court to specifically enforce the original contract in writing for the sale of the land. ’ ’ We have not looked at the amended bill.

The demurrer to the original bill is overruled, the decree reversed, and cause remanded with leave to answer in sixty days, from the filing of the mandate in the court below.