Hook v. TurnerHook v. Turner
delivered the opinion of the court.
There are two objections to the relief sought by the plaintiff in this action, both fatal to his right of reсovery. In the first place, the contract as set forth in the plaintiff’s petition is a verbal contract, not reduced to writing; nor is there any memorandum or note thereof in writing, signed by any one; it is a verbal contract respecting the sale of land : at least, it is of and concerning an interеst in land. It is clearly within the statute of frauds and perjuries. The defendant- denies the alleged contract in his answer. He expressly states that there never was such a contract entered into as set up in the plaintiff’s petition, or any contract of any kind for the land aforesaid by and between plaintiff and defendant.
The court that tried thе case found the following facts: That “ Turner agrеed with Hook that if Hook would not bid against him for a tract of land, situated between their farms,
The plaintiff, without making any motion for a review of law or fact, and without any excеption taken and saved to any ruling of the cоurt below, brings the case here by writ of error, and rеlies upon the point, that as the defendant did nоt plead the state of frauds, he cannot invoke its aid to defeat this suit. But the decisions will not support him in this view. Where the defendant in his answer denies thе contract, it is not necessary for him to insist upon the statute as a bar. (Wildbahn v. Robidoux,
The second ground also is fatal to his right to recover. If the sale at which the land in cоntroversy was sold was a judicial sale, as it seems to have been from the manner the plaintiff hаs set it forth in his petition, then the contract as аlleged by the plaintiff was against public poliсy, and for that reason the court would not enforce it at the suit of any of the parties. (Woоton et al. v. Hinkle,