Frazer v. Ford

• Court: Tennessee Supreme Court
• Writing for the Court: Caruthers
• Citation: Frazer v. Ford, 39 Tenn. 464 (Tenn. 1859)
• Decision Date: 30 April 1859
• Parties: FRANCIS FRAZER et al. v. NEWTON FORD, Administrator, etc., et al.

39 Tenn. 464

FRANCIS FRAZER et al.

v.NEWTON FORD, Administrator, etc., et al.

Supreme Court of Tennessee.

April Term, 1859.

FROM MEMPHIS.

Decree for the complainants at the November term, 1858, Caruthers, J., presiding. The defendants appealed.

Brown & Frazer, Wickersham & Beecher, and E. M. Yerger, for the complainants; Williams & McKissick and Watson, for the defendants.

Caruthers, J., delivered the opinion of the court.

The bill was filed to enforce a specific execution of a contract for the sale of lots in Memphis, and the question is, whether the contract is binding under the statute of frauds, so as to be enforced by a court of equity. The Chancellor thought it was, and decreed a specific performance. This is the writing:

“This agreement of sale entered into 21 May, 1857, between C. W. Frazer, for himself, and the heirs of John A. Frazer, deceased, of the one part, and Thomas Mull, of the other part, witnesseth, that said Frazer agrees to sell all the land now owned by himself and said heirs on Adams street, between Main and Second streets, south side of Adams, say 124 feet more or less, fronting on Adams street, and running back to alley, say 148 feet; and said Mull agrees to buy the same and pay for it the sum of $250 per foot front; $6,000 of said sum to be paid on 1st Nov. 1857, the balance” (of about $24,000) “in equal payments of one, two, and three years from that date with interest. A lien to be retained on said property for the payments.

Witness our hands and seals the day and date above written.

C. W. Frazer, (Seal.)

+---------------------+
                ¦Thomas Mull, ¦(Seal.)¦
                +---------------------+
                

Test: E. L. Jones.

W. H. Wynne.”

The statute of frauds of 1801, requires that “no action shall be brought,” * * * “upon any contract for the sale of lands,” * * * “unless the promise 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 some other person by him thereunto lawfully authorized.”

This property belonged to C. W. Frazer and his brothers and sisters, as the children and heirs of John A. Frazer, deceased by descent. To make the contract of sale good and valid, it must have been signed by all the owners, by themselves, or some one lawfully authorized to sign their names for them, not by one of them alone. C. W. Frazer had no legal authority from the other owners at that time, and if he had, it was not executed, as he...