30 Ind. App. 377 | Ind. Ct. App. | 1902
Action for damages for alleged breach of a contract to convey land. Complaint in three paragraphs to which demurrers were sustained.
The first paragraph avers that on the 9th day of Hay, 1900, and prior .thereto, appellant, a farmer, was engaged in breeding and raising hogs and cattle, and had expended large sums of money in the purchase of the best stock; that he had purchased a farm, convenient to his home farm upon which he resided, that was peculiarly adapted to the breeding and raising of such stock; that he had prepared the farm with suitable buildings and fences, and on that date had on the farm a large amount of stock; that this stock-farm was the only land he owned suitable for raising stock; that appellee owned and was in possession of certain land, particularly described, suited to raising stock, which land, aside from that of the appellant, was the only land suited to that purpose accessible to appellant’s residence, which appellee knew; that appellant desired to purchase appellee’s land, but to procure the money it would be necessary for appellant to sell his stock-farm, of which fact he informed appellee; that appellee knew appellant was unable financially to purchase appellee’s farm unless he could sell his own stock-farm; that “At the said time Haworth, with the full knowledge of all the conditions of the plaintiff, and plaintiff’s property, and plaintiff’s financial ability and business, as hereinbefore alleged, solicited and requested plaintiff to sell his said farm, hereinbefore mentioned, and, to induce plaintiff to sell his said farm, promised and agreed with plaintiff that in consideration that he would
It is further averred that appellant relied upon such' agreement and promises, and, at Haworth’s request, sold his
The three paragraphs of complaint are substantially the same, and considering them, as we must, upon the theory upon which they were manifestly drawn, they present the same question. Appellant’s right to recover back the purchase money paid is not presented, as it is quite clear that this is not the theory of the pleading. The question presented by the demurrer is the sufficiency of the complaint to recover damages for the breach of an oral contract to convey land. v
A parol contract to convey land is not void, but voidable. The statute simply provides that no action shall be brought upon it. Lowman v. Sheets, 124 Ind. 416, 7 L. R. A. 784; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Schierman v. Beckett, 88 Ind. 52. The statute provides: “No action shall be brought in any of the following cases: * * * Fourth, upon any contract for the sale of lands, * * * unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; excepting, however, leases not exceeding the term of three years.” §6629 Burns 1901.
It is argued that the pleading shows such part performance of the contract by appellant as that the case presented is not within the statute.
The payment of a part or all of the purchase money is not such part performance as will take a .parol contract for the sale of land out of the statute. Johnson v. Glancy, 4 Blackf. 94, 28 Am. Dec. 45; Swales v. Jackson, 126 Ind. 282; Suman v. Springate, 67 Ind. 115; Carlisle v. Brennan, 67 Ind. 12; Railsback v. Walke, 81 Ind. 409; Johns v. Johns, 67 Ind. 440; Wallace v. Long, 105 Ind. 522, 55 Am. Rep. 222; Felton v. Smith, 84 Ind. 485.
It has been held that possession by a lessee, under a parol lease, of part of the premises, and payment of rent for such portion, is not such part performance as arrests the operation of the statute so as to give the lessee a right to the balance of the premises. Cochran v. Ward, 5 Ind. App. 89, 51 Am. St. 229.
The reasoning and the conclusion reached-in the case of Eastburn v. Wheeler, 23 Ind. 305, would be applicable in the case at bar. But the doctrine of that case was expressly overruled in Sands v. Thompson, 43 Ind. 18. In the case last cited a third party, — Moffitt,—owned certain land, worth $2,700, which appellants desired to purchase for slaughter-house purposes, and, fearing they would be unable to purchase it for such purpose, they entered into an agree
In Parker v. Heaton, 55 Ind. 1, Parker desired certain property owned by Heaton, which Heaton agreed to sell to him at a price named, on certain terms, by a certain day. Parker owned certain property, worth $2,500, which lie told Ileaton he would have to sell at the reduced price of $1,400 in order to buy Heaton’s property. Ileaton told Parker to sell his property at the reduced price, and he would convey his property to Parker for $4,000, at the time and upon the terms named. Parker sold his property at the reduced price, but Heaton refused to sell and convey his property. In that case the court said: “It is insisted by appellant’s attorneys, that appellant’s sale of his Thorntown property, at said reduced price, was such a part performance of the contract between the parties to this action, as would take the ease out of the statute of frauds.. But this position is wholly untenable. Appellant’s sale of his Thorntown property was not a part of the contract between appellant and appellee. Appellee did not agree to buy the Thorntown property, and appellant did not agree that the proceeds of the sale of that property should be paid over to appellee. Ho doubt the Thorntown property was spoken of between the parties, in coming to their agreement about the appellee’s property. But it can not be said, with any legal accuracy, that appellant’s sale of his Thorntown property was
The case last cited seems to be controlling in the case at bar. It does not appear that appellant sold his property at less than its value. It is true it is averred that the parties contracted with reference to the proceeds to be derived from the sale of appellant’s property, but, under the authorities above cited, even if these proceeds had been paid to appellee, and had constituted the purchase price of appellee’s property, such payment would not have been such part performance as would take the case out of the statute. See Green v. Groves, 109 Ind. 519; Bradley v. Harter, 156 Ind. 499.
Judgment affirmed.