McDonald v. Yungbluth

• Decision Date: 11 July 1891
• Citation: 46 F. 836
• Parties: McDONALD et al. v. YUNGBLUTH et al.
• Court: U.S. District Court — Southern District of Ohio

46 F. 836

McDONALD et al. v. YUNGBLUTH et al.

United States Circuit Court, S.D. Ohio, Western Division.

July 11, 1891

Ramsey Maxwell & Ramsey and Stephens, Lincoln & Smith, for complainants.

Archer & McNeil and Follett & Kelley, for respondents.

SAGE. J.

The testimony in this cause sustains the averments of the bill that, shortly prior to the date of the deed hereinafter mentioned, the respondents, John Yungbluth and Stephen Yungbluth, Jr., entered into an oral agreement with the complainants to convey to them, by general warranty deed, a tract of land lying in the city of Cincinnati, Hamilton county, Ohio, and in that part of the city known as 'Columbia,' the same being on the bank of the Ohio river, and known as the 'Yungbluth Bros.' Coal Elevator Property,' containing in all about 3.26 acres in consideration whereof complainants were to assume and pay $18,000 indebtedness of said John and Stephen Yungbluth evidenced by their promissory notes, upon which complainants were indorsers, and, in addition, to furnish to said respondents $5,000 worth of coal; the total consideration being $23,000.

The deed, which was executed January 25, 1890, conveyed only a portion of said tract, containing 1.74 acres of land. The bill charges that said respondents fraudulently, knowingly and willfully conveyed the 1.74-acre tract instead of the entire tract aforesaid. It is further averred that complainants were ignorant of the fraud practiced upon them and of the fact that the deed conveyed only a portion of the property contracted for, until it was left for record on the day of its execution, and the consideration had passed; and that, relying upon the good faith of the respondents, they believed that the deed correctly described the entire tract known as the 'Elevator Property.' Upon discovering a further conveyance, according to the terms of the oral agreement, which they refused, and still refuse, to execute.

These charges are made out by the evidence, and the complainants are entitled to a decree for a further conveyance as prayed, unless the points made upon the law of the case for the respondents are well taken. These are as follows:

1. It appears from the evidence that the title to the portion of the tract not conveyed was not in said respondents, but in their mother, Johanna Yungbluth, who was no party to the deed executed, nor to the agreement claimed. That is all true, but it is also true, as is established by the evidence, that the legal title was and is in Johanna Yungbluth, in trust for her sons, said John and Stephen, Jr., and subject to their direction and control, and that by the terms of the agreement they undertook to secure a transfer from her, and convey the entire tract to complainants. Johanna Yungbluth is a party respondent, and, if the equity of the cause is with the complainants, there can be no doubt of the power of the court to make a decree compelling her to convey, either directly to complainants or to her sons, and that they then convey to complainants, as they agreed to do.

2. It is argued that the relief prayed for cannot be granted, for the reason that it would be the enforcement of a contract relating to real estate which was never reduced to writing, and that there has been no such part performance as to take the case out of the statute of frauds; citing Glass v. Hulbert, 102 Mass. 24, which directly sustains the proposition states, as do Elder v. Elder, 10 Me. 80; Osborn v. Phelps, 19 Conn. 63; Westbrook v. Harbeson, 2 McCord, Eq. 112, and Best v. Stow, 2 Sandf.Ch. 298, and the English cases therein cited.

It does not appear from the bill that the agreement was oral, but that fact is fully developed in the testimony. The statute is not pleaded by the respondents, but they rely upon May v. Sloan, 101 U.S. 231, and Dunphy v. Ryan, 116 U.S. 491, 6 S.Ct. 486, which hold that, where an agreement for the sale of lands, alleged in a bill in equity praying for specific performance, is denied by the answer, the defendant, where there is no written evidence of such agreement, may, at the hearing, insist on the statute of frauds as effectually as if it had been pleaded. That is no new rule. It is to be found in the text of Sugden on Vendors and Purchasers, and it is supported by a long list of authorities cited in a foot-note to section 511 of Browne on Frauds. But the respondents in this cause do not deny making an agreement to convey to complainants their coal-elevator property. On the contrary, they expressly admit that they did make such an agreement, and then deny that that property embraced or included any more than was conveyed by them to complainants, and they go on to aver that they have fully performed their agreement. The court finds that, as a matter of fact, they have not performed their agreement, and that they have dealt fraudulently with the complainants. In this state of pleading and of fact, how can it avail them to appeal to the statute of frauds?

But aside from this, let us look at the matter, treating the cases in...