221 F. 881 | 6th Cir. | 1915
Potter owned lands which Lowther desired to buy.. Oral negotiations were had# in connection with which Lowther wrote deeds ’in due form describing the property. This occurred at Potter’s home, remote from any town, and in the presence of no one else except a deputy clerk, who was Lowther’s assistant. Potter then signed and acknowledged the deeds and. put them in his pocket. Both parties understood that the deeds were not to be delivered until Potter (who could not read) had consulted a lawyer at the county seat and found that the papers were in form satisfactory to him. Upon such consultation, he was advised (erroneously, as we assume) that the deeds would pass some rights that it had not been intended to include. He refused to deliver the deeds; and this suit was brought in the court below to compel the specific performance of the oral agreement supposed to be evidenced by the deed. On final hearing, the bill was dismissed.
As the District Judge points out, the statute contemplates two classes of included instances: Those where the contract itself is in writing, and those where the contract is oral, but is accompanied or followed by a signed note or memorandum. As to the first class, it is clear that delivery of the written contract is essential, not because the statute in terms requires it, hut because, until there is delivery, there is no contract.
Counsel for appellant confidently insist that the statement found in different cyclopedias and digests, “An undelivered deed made in pursuance of an oral contract for the sale of land will not, by the weight of authority, constitute an adequate memorandum of the contract” (e. g., 20 Cyc. 257), is based upon decisions made in jurisdictions where delivery of the memorandum is required, and which are therefore inapplicable in a state like Kentucky where such delivery is not essential. • It must be granted that this criticism is, at least in part, well founded, as pointed out in Jenkins v. Harrison, infra; so it is necessary to look at the cases supposed to establish the contrary rule which should prevail in Kentucky. Thayer v. Luce, 22 Ohio St. 62, holds that a deed not delivered, and so not operative as a deed, may nevertheless sometimes be considered in connection with an existing memorandum of an oral contract for the purpose of supplying deficiencies in the memorandum; but the inapplicability of the decision to such a deed as is now involved -is apparent from the third clause of the syllabus (which, in Ohio, is the only thing decided) which reads:
“An instrument of writing in tile usual form of a deed of conveyance, but not delivered as such, may nevertheless be delivered as an executory contract, or as partial evidence of a contract to sell and convey the lands therein described; and if signed and so delivered by the vendor, and accepted by the vendee, it is sufficient, in an action thereon, against vendor, to take the ease out of the operation of the statute of fraiids.”
Jenkins v. Harrison, 66 Ala. 345, was very much such a case as Thayer v. Luce. The parties had orally agreed to exchange lands and had executed a memorandum of the agreement signed by both. A few days later, both signed deeds in due form, to carry out the previous agreement; but these deeds were withheld from mutual delivery only until a merchandise inventory should be finished in completion of the agreed computation. One of the parties then died, and the court held that these deeds could be referred to for the purpose of supplying an uncertainty in the existing signed memorandum. It is clear that both parties considered the contract as closed between them, and that the deeds were not withheld from delivery with the intent that the contract should not take effect. Whatever is said by the court in discussing the office of an undelivered deed in satisfying the statute of frauds was said with reference to this situation. To the same substantial effect as the Ohio and the Alabama cases is Ryan v. U. S., 136 U. S. 68, 10 Sup. Ct. 913, 34 L. Ed. 447.
In Work v. Cowhick, 81 Ill. 317, the action was against the purchaser who had signed a purchase-money note, and the deed had, in fact, been delivered for the use of the vendee and was beyond the control of the vendor. The other cases relied upon by appellant are equally insufficient to establish the alleged rule broadly enough to cover the facts of the present case. On the other hand, more or less support to the position that this deed was insufficient as either contract or memorandum is furnished by Day v. Lacasse, 85 Me. 242, 27 Atl. 124; Parker v. Parker, 67 Mass. (1 Gray) 409; Wilson v. Winters, 108 Tenn. 398, 67 S. W. 800; Kopp v. Reiter, 146 Ill. 437, 34 N.
Proof of an exception does not disprove the rule. It is not inconsistent with a Kentucky rule that the “memorandum” need not always he delivered to hold that when the only memorandum ever made takes the form of a deed solely in terms of present conveyance, and the delivery of which is expressly withheld so that the deed may not take effect, unless it should be approved by the grantor’s attorney, we have an exception to the rule. This results from observing the necessary consequences of the grantor's intent. There is a substantial distinction between the “memorandum or note thereof” of the statute, and the formal deed in this: That in Kentucky the first is not dependent on delivery, but the second is; that the intent of the vendor is, in the first instance, to be deduced from the contract recited in the “memo - ratuium or note thereof,” while, in the other, the intent of the vendor respecting the preparation and execution of the deed may be proved orally, precisely the same as respects the delivery of a chattel or any other article of personalty. Intent, in such cases, is of the essence of the transaction. So it. is that Potter’s intent not to deliver this deed under the situation here proved is the very foundation of the conclusion readied that there was no completed oral contract.
The decree below is affirmed, with costs.
Section 470, Kentucky Statutes: “No action shall be brought- to charge any person * * * (6) upon any contract for the sale of real estate * * * unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith, or by his authorized agent.”
We agree with the District Judge that this consideration reveals the true distinction between Newburger v. Adams, 92 Ky. 20, 17 S. W. 102, where it was held that the written contract must be delivered, and Alford v. Wilson, supra, holding that what was treated as a memorandum of an oral contract was sufficient without delivery.