Townsend v. Fenton
16 N.W. 421
Minn.
1883
Check Treatment
Gilfillan, G. J.

Aрpeal from an order.overruling a demurrer to the answer. The action is to enforce specific performanсe of an oral agreement to convey real estate set forth in the complaint. The agreement was between plaintiff and defendant and one Darms, in substance as follows: Darms held defendant’s note for $1,866.70, and sold it to plaintiff, and agreed to pay defendant ‍‌‌​​‌​‌​​‌​​‌‌‌​‌‌​‌​​​​‌‌‌​‌​​‌​‌​‌‌​​‌‌‌‌​‌​‌‌‍$100, upon the latter conveying the real estate to plaintiff. Plaintiff agreed that, upon such conveyаnce, he would surrender the note to defendant, and defendant agreed that, as soon as he should make final proof of his claim to the'land pursuant to the.laws of the United States, he would, upon the payment to. him of said. $100,'and the delivery to him of *530said nоte, convey the land in fee-simple to plaintiff. The complaint alleges the payment of $65 of the $100, the tender, after such final proof was made, of the residue, and of delivery of the note, a demand for a conveyance, and a refusal by defendant to convey. The answer alleges that the agreement was oral, and relies on the statute of frauds as onе defence, and, for another defence, alleges that, at the time of making said agreement, the defendant’s ‍‌‌​​‌​‌​​‌​​‌‌‌​‌‌​‌​​​​‌‌‌​‌​​‌​‌​‌‌​​‌‌‌‌​‌​‌‌‍sole interest in the land was by virtue of a “homestead entry” made by him, under the act of congress of May 20, 1862, entitled “An act to secure homesteads to actual settlers on the public domain,” and the acts amendatory thereof, (U. S. Rev. St. §§ 2290, 2291;) claiming that the agreemеnt was void under the provisions of said acts. The demurrer was to the whole answer as not stating a defence, and also to еach defence on the same ground.

Had the agreement alleged in the complaint been valid, the matter allegеd in the second answer would have been no defence. Restraints upon the right to alienate property are not favored, and the “homestead act” of congress contains no express prohibition of an alienation by an apрlicant for its benefits. Section 2290 requires one applying to make an entry under it to make an affidavit stating, among other things, that thе application is made for his ‍‌‌​​‌​‌​​‌​​‌‌‌​‌‌​‌​​​​‌‌‌​‌​​‌​‌​‌‌​​‌‌‌‌​‌​‌‌‍exclusive use and benefit, for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person. Section 2291 provides that, before the pаtent shall issue, he shall make an affidavit that no part of the land has been alienated. It has been held that a conveyance between the time of the entry and of the application of the patent is not void by reason of these provis- In ions. Knight v. Leary, 54 Wis. 459. Without expressing an opinion H as to the correctness of that decision, we cite it to show how averse I courts are to construe laws as prohibiting the right of any one to I alienate what is his. The agreement in this case having been made I after the affidavit required by section 2290, and before ‍‌‌​​‌​‌​​‌​​‌‌‌​‌‌​‌​​​​‌‌‌​‌​​‌​‌​‌‌​​‌‌‌‌​‌​‌‌‍that required I by section 2291, the first inquiry is, did it amount to an alienation» within the meaning of the lаtter section? It was an agreement tol convey, not before, but after, the patent should issue, and upon al considerаtion to be received at the time of the conveyance. Thel *531plaintiff could not be entitled to a conveyanсe before the patent should have issued, nor then unless he performed or tendered performance on his part. It would be an abuse ‍‌‌​​‌​‌​​‌​​‌‌‌​‌‌​‌​​​​‌‌‌​‌​​‌​‌​‌‌​​‌‌‌‌​‌​‌‌‍of terms to call this, of itself, an alienation. The agreement was, therefore, not void by reason of being рrohibited by or contrary to the policy of the statute.

Nevertheless, if the complaint' is bad, the plaintiff cannot complain that his demurrer to the answer was overruled. The sufficiency of the complaint depends on whether there was a part-performance of the oral agreement set forth in it, such as takes it out of the operation of the statute of frаuds. It is now 'well settled that payment of the purchase-money is not generally enough for this purpose. Pomeroy on Contracts, § 112, and authorities in note, and §§ 113 and 114; Waterman on Spec. Perf. §§ 268, 269; Pry on Spec. Perf. § 403. Where specific performance оf such agreements is decreed, notwithstanding the statute, it is on the ground that otherwise the statute would be made the means of committing a fraud; and the reason why payment in whole or in part will not, where it is in money, be deemed sufficient to take the case оut of the statute, is that, the party having an adequate remedy by action to recover back the money, withholding performаnce will not operate as a fraud. And it is the same where the acts of part-performance consist in something other than the payment of money, if the party can be adequately compensated by recovery of damages — as where they consist in services rendered, if their value can be ascertained with reasonable accuracy. Pomerоy on Contracts, § 114. It is the same where the agreement is tripartite. It must appear that the party seeking specific pеrformance will be defrauded unless it is decreed. If he has an adequate remedy at law, he cannot be defrauded. In this cаse the plaintiff has his action against defendant, to recover the amount of the note, and also an action as fоr money had and received, to recover the money which Darms paid defendant on his behalf. It would appear that these remedies are adequate to prevent a fraud being perpetrated on him by non-fulfilment of the agreement. Darms dоes not appear to have any interest in the fulfilment of it, and he is not here claiming it. The agreement was within the statute of frauds. The -rule of courts of equity to decree compensation, where *532it will not decree specific performanсe, has application only to a case where there is an agreement which the court would decree to .bе specifically performed, but for some condition of things, as want of .title in defendant, which renders performance impossible. Such, compensation was never decreed where there was no valid agreement.

Order affirmed.