Howie v. Swaggard

• Decision Date: 29 March 1926
• Docket Number: 25423
• Citation: 107 So. 556,142 Miss. 409
• Court: Mississippi Supreme Court
• Parties: HOWIE et al. v. SWAGGARD et al. [*]

107 So. 556

142 Miss. 409

HOWIE et al. v. SWAGGARD et al. ^[*]

No. 25423

Supreme Court of Mississippi

March 29, 1926

Division A

1. FRAUDS, STATUTE OF. Unsigned memorandum of terms of sale of standing timber is not covered by signature of vendor on back of check given him by vendee in part payment, unless it is referred to in check, or physically attached thereto in such manner as to be part thereof.

An unsigned memorandum of the terms of a sale of standing timber is not covered by the signature of the vendor on the back of a check given him by the vendee in part payment for the timber, unless it is referred to in the check or physically attached thereto in such manner as to be a part thereof.

2. FRAUDS, STATUTE OF. Memorandum of sale of standing timber though complete in all other respects, is not sufficient compliance with statute of frauds, unless delivered to buyer.

A memorandum of the sale of standing timber, though complete in all other respects, is not a sufficient compliance with the statute of frauds, unless delivered to the vendee.

3. FRAUDS, STATUTE OF. Acceptance of part of purchase price does not render valid parol contract for sale of land, nor estop acceptor from refusing to carry out contract.

The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract.

4 FRAUDS. STATUTE OF. Part performance will not take parol sale of lands out of statute of frauds; exceptions to statute of frauds on account of part performance will not be ingrafted on statute; fact that vendor fraudulently evaded part of agreement to reduce part of contract to writing is not sufficient to take case out of statute of frauds.

It is the settled doctrine in this state that part performance will not take a parol sale of lands out of the statute of frauds no exceptions of that character will be ingrafted on the statute. Neither will it be sufficient to take the case out of the statute that it formed a part of the contract itself that it should be reduced to writing, but the vendor fraudulently evaded this part of the agreement.

5. EQUITY. Where fraud is charged in bill for specific performance, it need not be answered, if bill admitting fraud presents no ground for relief; bill to enforce parol sale of land, charging defendant with fraudulently refusing to reduce agreement to writing, though it was part of contract, may be demurred to, without answer to charge of fraud.

When fraud is charged in the bill, it need not be answered, if the bill, admitting the fraud, presents no ground for relief. A bill, therefore, to enforce a parol sale of land, charging the defendant with fraudulently refusing to reduce the agreement to writing, though it was part of the contract it should be so reduced, may be demurred to, without an answer to the charge of fraud.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Rankin county, HON. G. C. TANN, Chancellor.

Suit by W. T. Howie and others against C. S. Swaggard and others for specific performance. From a decree sustaining a demurrer to and dismissing complainants' bill, complainants appeal. Affirmed.

Affirmed.

Howie & Howie, for appellants.

I. The agreement made orally was actually reduced to writing. The check was issued for ten dollars on which it was stated what was being sold and the amount being paid, namely, ten dollars and the amount of the balance on the purchase price; namely, nine hundred ninety dollars. There is no uncertainty about the description of the property agreed to be sold nor any uncertainty about the price which was to be paid, so that as far as the seller was concerned he knew what he was selling and what he was to receive therefor; and the purchaser knew what he was buying and what he was paying therefor. This constitutes the material portions of the contract and is sufficient to show what was intended, what was being bought and the amount paid therefor. This check was accepted by Swaggard as cash and retained by him, and is still retained by him. The bill recites, on information and belief and charges accordingly, that the same was endorsed by said Swaggard.

As we understand the situation, it certainly rises to the level of an offer in writing and acceptance by Swaggard. The offer is sufficiently written into the check and when Swaggard accepted the check and endorsed the same, even though he had not yet returned the check to the appellants, it still constitutes a contract. Many contracts are made by offer being made in writing by one party and accepted by the other without the acceptance being returned to the party making the offer. Peevey v. Haughton, 72 Miss. 918, 17 So. 378.

II. There is a maxim of equity which holds that one party to a contract cannot act in such manner as to hold the other party without himself being estopped from saying that he is not himself bound. The appellants are bound in three distinct ways: (1) The check is negotiable and outstanding against them. (2) The check itself shows the contract signed by them, which is enforceable against them. (3) The contract is further evidenced by the written deed prepared by the appellants and signed by Swaggard, but which has not yet been delivered by him.

Under the above maxim of equity Swaggard is estopped from claiming that he is not bound by his agreement. He cannot be permitted to accept the check, keep the same and hold appellants bound to the agreement subject to any change of mind he may have. Having made the agreement, accepted the check and accepted the contract and executed it, he cannot after the lapse of a long period of time be heard to contend that he is not obligated to perform his part thereof.

III. No one can profit by his own fraud. Our courts have uniformly held that where an oral contract was made and afterwards one of the parties thereto by his own fraud prevented the written agreements being delivered, that they will not be allowed to take refuge under the statute of frauds. This rule was established early in the history of our chancery practice. Finucane v. Kearney et al., 1 Freeman's Chancery Practice, p. 65. This case is still the law in Mississippi and fits our case exactly.

IV. Where fraud is charged in the bill, a demurrer will not be sustained until the charge of fraud has been denied under oath. This has not been done here, so this case necessarily would have to be reversed.

S. L. McLaurin, for appellees.

Standing timber being a part of real estate is within the statute of frauds. Hoop Co. v. Barnett et al., 127 Miss. 81, and cases there cited. It is not charged in the original bill of complaint that the instrument of writing was ever signed by appellee, defendant below. In fact the original bill of complaint taken in connection with the amendment thereto, shows directly that it was not signed by appellee. The original bill of complaint charges that complainants paid defendant ten dollars and accompanied the payment by a memorandum in writing as follows; to-wit: "Part payment on all timber on the southeast quarter of the northwest quarter, section fourteen and west half and northeast quarter, section fifteen, township 7, range 3 east, Rankin county, Mississippi, balance due nine hundred ninety dollars." It is not charged that this memorandum in writing was signed by defendant. This memorandum in writing if signed by defendant would not have sufficiently set out the terms of the purchase. It is as necessary to set out definitely the terms of the purchase as it is to give a full description of the property to be conveyed. Nickerson v. Land Co., 118 Miss. 723.

Complainants undertake to bind defendant on the allegation that the complainants delivered to defendant a check with a memorandum on it and that the defendant endorsed the check. The acceptance of a check with a memorandum on it, and the endorsement of the check by the defendant would not be a writing signed by the parties to be...