Wiley v. Robert

| Mo. | Oct 15, 1860

Napton, Judge,

delivered the opinion of the court.

The questions presented by this record are substantially the same determined by the court when the case was here before. (27 Mo. 388" court="Mo." date_filed="1858-10-15" href="https://app.midpage.ai/document/wiley-v-robert-8000414?utm_source=webapp" opinion_id="8000414">27 Mo. 388.)

The memorandum of the sheriff was then decided to be a sufficient compliance with the statute of frauds. Precisely the same state of facts appeared on the second trial.

In reference to the agreement between Robert and Adams after the sale, we do not see how it can affect the disposition of this suit. That agreement was, as proved by the only witness who spoke of it, that “ Adams should keep the place upon a price to be agreed upon afterwards between himself and Robert.” It was not reduced to writing. Had it been in writing and unobjectionable so far as the statute of frauds is concerned, how could it be enforced in this suit ? If Adams had been a stranger in interest, it is clear that such a contract could amount at furthest to an agreement to sell him the land on such terms as might be afterwards settled; but until the terms are agreed upon, how is the contract to be enforced ? No price is named.

The fact that Adams owned the larger portion of the land sold, or rather was entitled to the larger portion of the proceeds of the sheriff’s sale, did not authorize him to discharge the defendant from a contract, in which four other persons were interested; nor can the contract proved be considered, upon any reasonable interpretation of its intent, as a release of the defendant to the extent of Adams’ interest. There was nothing definite or complete in its terms. If the parties had subsequently disagreed as to the price, could a court of equity have forced them to agree or made a contract for them ?

It is sufficient, however, that the contract was not in writing and that no circumstance occurred to withdraw it from the operation of the statute. Adams was in possession of the land before the sale, and continued in possession after-wards. He remained on the place until his crop was made and then removed. There was no evidence having any tendency to show that he took possession under the verbal contract ; nor was there, as has been observed, any of that certainty in its terms which courts of equity always require when called upon to enforce a contract against the letter of the statute of frauds.

Judgment affmned.

The other judges concur.