Gill v. Newell

• Decision Date: 01 January 1868
• Citation: 13 Minn. 430
• Parties: AUSTIN GILL v. FRANCIS NEWELL, impleaded, etc.
• Court: Minnesota Supreme Court

Page 430

13 Minn. 430

AUSTIN GILL

v. FRANCIS NEWELL, impleaded, etc.

Supreme Court of Minnesota.

Appeal by defendants from a judgment of the district court, Dakota county.

The action was to enforce performance of a contract to convey real estate. The defendant Lash made no defence. Newell answered, and the cause was tried before a referee who found in favor of the plaintiff, and judgment was accordingly entered. The facts found by the referee so far as they relate to the questions passed on by this court, are stated in the foregoing note.

Smith & Gilman, for respondent Newell.

Allis, Gilfillan & Williams, for respondents.

McMILLAN, J.

There is no doubt, we think, that the facts as found by the referee in this case show such a part performance of the parol contract between the plaintiff and the defendant Newell as withdraws it from the operation of the statute of frauds. The plaintiff paid to Newell the $500 for the payment in hand provided for in the contract between Lash and Newell. The latter delivered the written contract between himself and Lash to the plaintiff, who received and has ever since retained it, and relying on said verbal arrangement with Newell, and supposing he would carry it out in all respects, the plaintiff thereupon entered upon the land and commenced improving the same by breaking or plowing it, and did break or plow 75 acres, — about one-half of the land, — at a cost of $3 per acre for each of said 75 acres. It distinctly appears from the referee's report these things were all done subsequent to and in pursuance of the parol agreement, and that such entry into possession and improvement of the land by the plaintiff was with the knowledge of and without objection from the defendant Newell. Delivery of, and entry into possession of land in pursuance of, and in direct reference to a parol contract, has always been considered an act of part performance, which will take the case out of the statute of frauds and entitle the vendee to the specific performance of the contract. Parkhurst v. Van Cortlandt, 14 Johns. 15; Moreland v. Lemasters, 4 Blackf. 383; Harris v. Knickerbacker, 5 Wend. 638; 1 Lead. Cas. in Eq. 732, and authorities cited.

What then is the effect of this contract? The distinct object of Newell and the plaintiff on making this parol contract was that the plaintiff might become the owner of the land, and for this purpose Newell entered into the written contract with Lash. It was agreed by this parol contract not only that Newell upon the consummation of the purchase and the execution of the deed from Lash to him, would immediately convey the premises to the plaintiff, but it was further agreed that "all the rights secured under the contract of purchase to said Newell should instantly enure to the benefit of said plaintiff, the said Newell to be merely the channel or conduit through which the title should flow from the said Lash to plaintiff." It seems to us from this agreement that the parties intended it as an assignment of the contract of purchase by Newell to the plaintiff, and as Newell's right to the possession of the premises was secured by the terms of the written contract alone, the delivery of the written contract and of the possession of the premises by him to the plaintiff, would indicate the same construction by the parties themselves; and such we think was the effect of the parol agreement and the acts of the parties thereunder.

Under our statute it would seem that no trust would have resulted in favor of Gill from the mere payment of the purchase money by him under this agreement, but the defendant Newell would have the title discharged of any trust. Gen. St. c. 43, §§ 7, 8, p. 341; Wentworth v. Wentworth, 2 Minn. 277, (Gil. 238.) Under the written agreement standing alone, therefore, Newell would become the equitable owner of the premises and entitled to the possession. But as the express purpose of the parol agreement between Newell and Gill was to procure the land for Gill, and the written agreement was obtained by Newell and delivered to Gill for that purpose, and in pursuance of this parol agreement, the effect of the parol agreement as between them, if valid, was to transfer the equitable ownership of the land, and the rights of...