Cornett v. Clere

• Citation: 193 Ky. 590,236 S.W. 1036
• Parties: CORNETT v. CLERE ET AL.
• Decision Date: 31 January 1922
• Court: Kentucky Court of Appeals

236 S.W. 1036

193 Ky. 590

CORNETT v. CLERE ET AL.

Court of Appeals of Kentucky.

January 31, 1922

Appeal from Circuit Court, Boyd County.

Suit by Theodosia A. Clere and others against Howard Cornett, and another. From a decree for plaintiffs, defendant Cornett appeals. Reversed.

Waugh &amp Howerton, of Ashland, for appellant.

John T Diederich, of Ashland, for appellees.

SAMPSON J.

Appellant Cornett by verbal contract sold to D. M. Clere, now deceased a lot for $100. At the time of the sale Clere paid Cornett $50 on the purchase price, and Cornett gave to Clere the following written receipt:

"March 3, 1916.

Received of D. M. Clere, fifty ($50.00) dollars and no/100 for payment on lot.

Howard Cornett."

On February 26, 1917, Clere made another payment of $11.62, for which Cornett gave him the following receipt:

"Ashland, Ky. February 26, 1917.

Received of E. C. Clere, eleven dollars and sixty-two cents on lot.

H. Cornett."

In May, 1917, Clere paid Cornett $10 more, but received no written receipt to evidence the payment. In October, 1918, Clere died intestate, leaving a wife and eight infant children. This suit was commenced by Theodosia A. Clere, the widow, for herself, and as next friend for the eight infant children against Cornett and George Carroll, to whom Cornett had conveyed the lot, to enforce the contract of sale of the lot made by Cornett to Clere; for specific performance of the contract according to its terms, and praying that Cornett and Carroll be required to convey by general warranty deed the said lot to the widow and children of Clere, according to their interest therein, or on their failure to so convey, the court direct its master commissioner to make said conveyance.

The answer admits the sale of the lot by Cornett to Clere, and also the several payments made thereon, but it avers that the agreement was verbal, "and no writing whatever passed between them." After proof was taken Cornett and Carroll filed an amended answer, setting up the statute of frauds and perjuries relying on same to defeat the plaintiffs in their action for specific performance of the contract.

In decreeing specific performance of the contract of sale of the lot the trial court said:

"The court is of the opinion that the receipt for the purchase money paid on lot in question with answer of defendant Cornett are sufficient to remove case from bar of statute of frauds. The receipts alone are, of course, clearly not sufficient to do so."

We must agree with the learned trial judge that the receipts alone are wholly insufficient to take the case out of the statute of frauds, which requires every contract respecting the sale of real property to be in writing, signed by the party to be charged therewith, or by his authorized agent. A verbal contract for the sale of land is not absolutely void, but the statute provides that no action shall be brought thereon unless the contract, or some memorandum or note thereof, be in writing, signed by the party to be charged. There are, however, cases in which the vendee in possession under a parol contract may rely upon his verbal agreement in bar of an action to recover the land until the equities are adjusted. Cornellison v. Cornellison, 1 Bush, 150. The memorandum required by the statute must be sufficient to enable the chancellor, without the aid of parol evidence, to decree specific performance. In 25 R. C. L., p. 649, the text is:

"It is well settled that the memorandum, in case of a contract to sell land, must describe the land sold. If an insufficient description is given or there is no description, oral evidence is not admissible in aid of the memorandum, because the court will never receive such evidence both to describe the land, and then to apply the description."

This is the general rule, and is sustained by the decisions of courts of last resort throughout the country. Hanly v Blackford, 1 Dana, 1, 25 Am. Dec. 114; Roberts v. Bennett, 166 Ky. 588, 179 S.W. 605, L. R. A. 1916C, 1098; Hall...