Ivory v. Murphy

• Decision Date: 31 October 1865
• Citation: 36 Mo. 534
• Parties: JOHN C. IVORY, Appellant, v. JOSEPH MURPHY, Respondent.
• Court: Missouri Supreme Court

36 Mo. 534

JOHN C. IVORY, Appellant,

v.JOSEPH MURPHY, Respondent.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Land Court.

Glover & Shepley, for appellant.

I. The agreement being signed by Murphy alone is sufficient to charge him; for,

1. The express words of the statute are that it need only be signed by the party to be charged. (R. C. 1855, p. 807.)

2. Such has been the almost uniform decision as to the true construction of the statute. (Clason v. Bailey, 14 Johns. 484; Matter of Hunter, 1 Ed., Ch. 1; McCrea v. Purvent, 16 Wend. 460; Woodward v. Harris, 3 Sand. 272; Penneman v. Hartshorn, 13 Mass. 87; Old Colony R. R. Co. v. Evans, 6 Gray, 25; Flight v. Bolland, 4 Russ. 298; Brown, Stat. Frauds, §§ 365-6; Bean et als. v. Valle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303; King v. Wood, 7 Mo. 389; Bean v. Burbank, 16 Maine, 458.)

3. The plaintiff, by bringing his action, is estopped from denying that he has signed the agreement. (Same cases already cited.)

4. Bills of specific performance upon agreements signed by one party are maintained, not only because the language of the statute admits of no other construction, but because plaintiff, by filing his bill, makes the remedy mutual. (Palmer v. Scott, 1 Russ. & Ing. 391; Martin v. Mitchell, 2 Jac. & Walk. 426; Worral v. Mann, 1 Seld. 229; Sugden, Vendors, 112-13; Sherley v. Sherley, 7 Blackf. 452.)

II. The property concerning the purchase of which the agreement was made is sufficiently described.

III. The consideration was accurately and specifically stated. The principal case, that of Wain v. Walters, has been held not to be law in more than half the States of the Union, including Missouri. (Brown, Stat. Frauds, § 391.) But it is not necessary in this case to seek to overturn that decision, for it in no manner supports the position taken by defendant. That case, as well as all others, holds the position that the essential terms of the contract must be expressed in the writing; and it has been held over and over again, that this may appear from implication of the words used in the writing. Chief Justice Tindall, 1 Bing. N. C., 761, cited in sec. 399 of Brown on Statute of Frauds, as containing the true doctrine.

G. P. Strong, for respondent.

I. Defendant relies upon the Statute of Frauds, which provides that “no action shall be brought upon any contract for the sale of lands,”&c., “unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.” (R. C. 1855, p. 807, § 5.) Hence it follows necessarily, that the agreement, to be enforced must be a valid agreement; that is, it must be between parties competent to contract--must be upon a sufficient consideration. It must be concerning a proper subject matter, and then must be clear as to what the parties respectively undertake to do. In the absence of any of these qualities, there can be no valid agreement that any court of justice would undertake to enforce. (Wain v. Walters, 5 East. 16.) Now, a consideration is of the very essence of a contract; and, with or without the statute of frauds, no contract wanting this element can be enforced. (Saunders v. Wakefield, 4 Barn. & Ald. 595.) This would be a nudum pactum, and nothing more, and no court would enforce it. (Wain v. Walters, 5 East. 16; Morley v. Boothby, 3 Bing. 107.) It is fatally defective, because it does not state that Ivory had promised to sell. (Bean v. Burbank, 16 Me., 4 Shep., 458; 3 T. R. Durnf. & East. 653.) It is not a contract for the sale of lands, because there is no engagement on Ivory's part to sell lands, and there can be no obligation to buy lands without a corresponding obligation to sell lands. There must be a binding contract to sel. lands before there can be any contract to buy lands. (First Baptist Church v. Bigelow, 16 Wend. 28; Geiger v. Green, 4 Gill. 476.) This distinction between executory and executed contracts was noticed and relied upon by Ch. Justice McGirk, in giving his opinion in the case of Bean et al. v. Valle et als., 2 Mo. 126; King v. Wood, 7 Mo. 389; Edgerton v. Matthews, 6 East. 307; Soles v. Hickman, 20 Penn. 180 183; First Baptist Church v. Bigelow, 16 Wend, 28; Sears v. Brink, 3 J. R. 210; Underwood v. Campbell, 14 N. Hamp. 393; Brown, Stat. Frauds, p. 405, §§ 394, 401; Sugden, Vend. 103; Lee v. Whitcomb, 5 Bing. 37. A contract to sell lands where there is no agreement to purchase, is void.

(Bean v. Burbank. 4 Shep. 458; Soles v. Hickman, 20 Pa. 183.) The case of Sears v. Brink et al., 3 J. R. 210, is precisely in point. Underwood v. Campbell, 14 N. Hamp. 393, is to the same effect. The whole question is presented in Brown on Statute of Frauds, p. 405, § 394, with the reasoning upon which the case of Wain v. Walters is sustained upon sound principles applicable to the construction of statutes.

II. It is a well established principle of equity jurisprudence, that a decree for specific performance is not a matter of right. (2 Sto. Eq. §§ 767, 770; Waters v. Howard, 8 Gill. 262, 283; Owings v. Baldwin, Id. 337; Duvall v. Myers, 2 Md. Ch. 401-404; Geiger v. Green, 4 Gill. 477; Dodd v. Seymour, 21 Conn. 476.)

Although the language of the agreement is, “I have purchased,” th petition shows that it was only understood to be an “agreement to pur chase,” not an actual purchase. Such is the legal construction of the words. Words indicating a conveyance in presenti are always construed to be a mere agreement to convey, where such is the evident intent of the parties. (Jackson v. Moncrief, 5 Wend. 26; Ives v. Ives, 13 J. R. 388; Jackson v. Myers, 3 Id. 388; Jackson v. Clark, Id. 424; Atwood v. Cobb, 16 Pick. 227.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his suit for specific performance, in the Land Court of St. Louis county, on the following instrument:

“St. Louis, May 17, 1859. I have this day purchased of John C. Ivory, for the sum of $25,000, the land in the Carondelet common field, known as blocks 61, 62 and 63, in survey numbered one hundred, and the western one-half of survey No. 98 of said common fields, and being known as a 30 and a 20 arpent tract; $6,000 to be cash, and the balance to be divided into eight payments, first at 3 12 months, and the remaining seven every six months thereafter, and bearing 6 per cent, per annum interest; but if said Ivory elects, a deed of trust on a part of this property must be assumed, and the balance made in payments as aboe. Deeds and papers to be made out as soon as possible. Joseph Murphy.”

At the hearing of the cause in the Land Court, the plaintiff introduced the above writing in evidence, and then closed his case; whereupon the court, at the instance of the defendant, declared the law to be that, upon all the evidence in the cause, the plaintiff was not entitled to a decree for specific performance of the alleged contract. Plaintiff then took a non-suit, with leave to move to set the same aside. For the purpose of bringing the case to this court, it was admitted that plaintiff had title in the premises, and that he had tendered to the defendant a good and sufficient deed of conveyance to the same prior to the institution of this suit; and the only question involved in the determination here is, the legal effect and validity of the written instrument sued on.

It is insisted by the defendant that the contract is void for want of consideration; that the written instrument is not such an agreement or memorandum as is required by the statute of frauds; and that plaintiff, not having contracted or agreed to sell the lands to defendant, it is not binding on him for want of mutuality. By the Statute of Frauds and Perjuries, it is enacted that no action shall be brought to charge any person upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or ome person by him thereto lawfully authorized. It is not necessary that the agreement should be signed by both parties, but only by the party to be charged. In the construction of the statute, courts have widely differed as to the meaning to be attached to the words memorandum or agreement, and the most protracted discussion has arisen out of this difference. Now, the statute was meant to prevent perjuries, and hence it is contended that the writing or agreement must be complete in itself, containing the terms, the parties and the consideration, so that it can be enforced in the courts without the application of parol testimony.

In Wain v. Walters (5 East. 10), decided by Lord Ellen borough, it was held the word agreement must be understood to mean the consideration for the promise, as well as the promise itself, and, therefore, where one promised in writing that parol evidence of the consideration was inadmissible by the statute, and that, consequently, such promise appearing to be without consideration upon the face of the written agreement, was nudum pactum, and gave no cause of action. The decisions in the English courts have at times departed greatly from the strict doctrines laid down in Wain v. Walters, but that authority has been followed and declared to be law in many of the States in this Union, whilst in others it is rejected. From a review of the authorities, it will be seen that it has never met the approbation of the courts in this State.

The first case in which this subject was brought up for consideration in this court, is Bean et al. v. Valle et al. (2 Mo. 126), from which it appears that on the 3d day of July, 1824, Bean obtained from the Receiver of Public Money for the St. Louis Land District, a receipt in these words:

“Receiver's Office, St. Louis, 3d July, 1824.--Received of Jonathan L. Bean, of St. Louis city, Mo., the sum of one hundred dollars, being in...