Graham v. Weaver

• Decision Date: 24 October 1896
• Parties: GRAHAM et al. v. WEAVER et al.
• Court: Tennessee Supreme Court

37 S.W. 221

GRAHAM et al. v. WEAVER et al.

Supreme Court of Tennessee.

October 24, 1896.

Appeal from chancery court, Washington county; John P. Smith, Chancellor.

Bill in equity by W. J. Graham and others against Robert Weaver and others. From a decree for complainants, the defendants appeal. Reversed.

Carr, Reeves & Jennings and Carr & Reeves, for appellants. Curtin & Haynes and F. P. Burch, for appellees.

WILKES, J.

Complainants sold defendant a lot, by parol, for $375. Fifty dollars was paid in cash, $80 was to be paid in monthly installments of $10 each, and the balance of $245 nine months thereafter. The last amount was not paid when due, and complainants filed their bill, stating the sale in parol, and asking that it be enforced by a sale of the property, or if the defendants declined to confirm the sale, that they be given possession of the property. A deed was tendered with the bill. The answer admitted the parol sale, but denied that the terms were correctly set out. Defendants filed a cross bill stating that they had put valuable improvements on the lot at a cost of $450, and that they were advised they could not enforce the contract, and prayed for the refunding of the purchase money and interest, and for the amount spent in improvements, or for the enhanced value of the lot by reason of such improvements. The answer to this cross bill averred readiness to comply with the sale, to accept the balance due and to make the deed, and tenders to defendants the option to complete the sale or set it aside, as they might prefer. Upon the hearing the chancellor was of opinion that, inasmuch as defendants did not specifically set up and rely on the statute of frauds, the contract could be enforced against them, and gave judgment for the balance of purchase money, and entered a decree for sale. The sale was made, and the property bought by complainants at $300, and the sale confirmed to them, and defendants appealed and assigned errors. The cause has been heard by the court of chancery appeals, and that court affirmed the decree of the chancellor, and defendants appealed to this court, and have assigned errors.

We are of opinion there is error in the decree of the chancellor and court of chancery appeals. The effect of the pleading was to tender to the defendants an option to confirm the parol sale, and pay the purchase money, or to repudiate it and take their rights as fixed by law in such cases. They elected to repudiate the sale, in the...