Overstreet v. Rice
| Decision Date | 21 September 1868 |
| Citation | 67 Ky. 1 |
| Parties | Overstreet v. Rice. |
| Court | Kentucky Court of Appeals |
1. " This is to certify that we, James W. Overstreet and Franklin W. Rice, have this day swapped farms, and the said Overstreet agrees and binds himself to pay to the said Rice one thousand dollars by the first day of March next, or the time of exchanging places, and the balance, seven hundred dollars, twelve months from time of exchanging places, this 31st December, 1866.
The parties exchanged possession of the farms February 21, 1867. Rice sued for the payment, and Overstreet defended upon the ground that the contract was not enforceable, & c Held --That this instrument of writing does, at least, evidence a contract of mutual exchange of lands in presenti; and though it were not enforceable within itself, unaided by extraneous circumstances, for want of certainty in specifying what lands were exchanged, yet, when the parties, by their subsequent acts, have rendered this uncertainty sure by taking possession and consummating the mutual exchange, it is too late for either party, to say there is no memorandum in writing signed by the party to be charged, and especially when the vendor shows that he is both able and willing to convey, the vendee in possession, shall not be heard to set up such a defense.
2. If the written memorial of the sale of lands were voidable for uncertainty when first executed, this impediment may be removed by the subsequent acts of both parties.
3. Courts of equity will enforce a specific performance of a contract within the statute where it has been partly executed; for, otherwise, one party would be able to practice a fraud upon the other, which was not the intention of the statute. Great caution is to be used in the determination of what is a part execution. (1 Story's Equity Jurisprudence, sec. 759, et seq.; 4 Bibb, 466; 3 Mon., 445; 3 Littell, 264.)
APPEAL FROM TAYLOR CIRCUIT COURT.
WILLIAM HOWELL and T.C. WINFREY, For Appellant,
CITED--
1 Johnson's Chy. R., 279-80; Parkhurst vs. Van Courtlant.
12 Ves., 466; Blagam vs. Bradbear.
6 B. Mon., 101-3; Curd vs. Kay; 1 Dana, 2-3.
4 Bibb, 466; Ellis vs. Deadman's heirs.
3 Marshall, 445; Fowler vs. Lewis.
3 Littell, 262; Fugate vs. Hansford.
1 Johnson's Chy. R., 131; Phillips vs Thompson.
Revised Statutes, chap. 22, 1 Stanton, 264-5.
CRADDOCK & TRABUE and J. R. ROBINSON, For Appellee,
CITED--
6 B. Mon., 100; Kay & Casey vs. Curd.
4 Bibb, 466; 3 Littell, 262.
3 Met., 583; Harrow vs. Johnson, & c.
2 Duvall, 156; Warren vs. Barker & Co.
1 J. J. M., 76; Rowland vs. Garman.
These parties entered into the following written agreement, viz: " This is to certify that we, James W. Overstreet and Franklin W. Rice, have this day swapped farms, and the said Overstreet agrees and binds himself to pay to the said Rice one thousand dollars by the first day of March next, or the time of exchanging places, and the balance, seven hundred dollars, twelve months from time of exchanging places, this 31 st December, 1866.
J. W. OVERSTREET,
F. W. RICE.
Witness:--CRAM. HASKINS."
February 21, 1867, the parties did exchange, Overstreet moving from his farm, in Taylor county, to the one for which he had traded it from Rice, in Adair county, and Rice removing to the Overstreet farm, in Taylor county.
The first installment of one thousand dollars not being paid, Rice brought his action ordinary to recover it, March 19, 1867, to which Overstreet put in his answer and cross-petition, averring--
1. That no contract in writing as to said land trade had ever been entered into, but that it remained in parol, and was not, therefore, enforceable.
2. That Rice had no good and sufficient title to the Adair county farm, and prays an exhibition of his title.
3. That Rice had practiced a fraud on him in a misrepresentation as to where the lands were situated--representing that only some thirty of the three hundred and thirty-three acres lay southeast of the creek, among the hills, and the remainder on the opposite side being level bottom land, and much more valuable; whereas, about one hundred and fifteen acres lay among the hills southeast of the creek; and he prayed for a rescission, & c.
The cause was, on defendant's motion, transferred to the equity docket, after which, on March 10, 1868, Rice replied, asserting the contract in writing, the actual exchange of farms, averring that the last payment became due March 1, 1868; agreeing that he represented the whole tract to contain three hundred and thirty-three acres, but averring that it really contained much more; denied any misrepresentations, and exhibited his claim of title as coming from Andrew Barnett, deceased, who, and his vendees, had held over thirty years uninterrupted adverse possession; offering to convey by general warranty deed, upon payment of the purchase price; resisted any rescission or cancelment of the contract, and prayed as in his original petition--that is, " for judgment for one thousand dollars, with interest from 1st day of March, 1867, and for all other and proper relief. "
The court, on final hearing, adjudged that Overstreet should pay the one thousand seven hundred dollars, convey the Taylor county farm to Rice, and receive a conveyance from Rice to the Adair county farm; from which Overstreet prosecutes this appeal.
This instrument of writing does at least evidence a contract of mutual exchange of lands in presenti, and, though it was not enforceable within itself, unaided by extraneous circumstances, for want of certainty in specifying what lands were exchanged, yet when the parties, by their subsequent acts, have rendered this uncertainty sure by taking possession and consummating the mutual exchange, it is too late for either party to say there is no memorandum in writing, signed by the party to be charged; and especially when the vendor shows he is both able and willing to convey, shall the vendee in possession not be heard to set up such a defense?
If voidable for uncertainty when the writing was first executed--which, however, is not admitted--this impediment has been removed by the subsequent acts of both parties. It is clearly taught by Story (1 Equity Jurisprudence, section 759...
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