Price v. Hart

• Decision Date: 31 October 1859
• Parties: PRICE, Appellant, v. HART et al., Respondents.
• Court: Missouri Supreme Court

29 Mo. 171

PRICE, Appellant,

v.HART et al., Respondents.

Supreme Court of Missouri.

October Term, 1859.

1. Where delivery of possession of land in case of a parol contract of sale has unequivocal reference to such contract and is under and by virtue of it, this will constitute such part performance thereof as will take the case out of the statute of frauds.

2. Where a deed of a married woman is invalid by reason of a defective acknowledgment, she may ratify and confirm the same after becoming discovert; a mere parol adoption would not be sufficient; it would be within the statute of frauds.

Appeal from Monroe Circuit Court.

This was a suit commenced in the year 1855 by Miriam Price against the defendants as the heirs Mrs. Mahala Collins. The facts of the case are briefly as follows: Mr. and Mrs. Collins, in 1853, sold certain lands belonging to Mrs. Collins to the plaintiff Miriam Price. They executed a deed of conveyance dated February 24, 1853, in favor of plaintiff; who was admitted immediately into possession. She gave her notes for the purchase money. Mr. Collins soon after died. The deed executed by Mr. and Mrs. Collins was ineffectual by reason of a defective acknowledgment on the part of the wife. The defect was not discovered until after the death of Mr. Collins. There was evidence showing that in 1854, after the death of her husband, Mrs. Collins assented to the sale, expressed her entire satisfaction with it if the money could be secured to her own children, and promised to execute a deed to Mrs. Price. Mrs. Collins died in 1855 before the institution of this suit. After her death the purchase money due was paid to her administrator. The court decreed against the plaintiff on the ground that the contract being in writing was within the statute of frauds.

Carr, for appellant.

I. The deed of Mrs. Collins, though defectively acknowledged, is a sufficient note in writing within the statute of frauds. She adopted this deed after the death of her husband, and it became a sufficient memorandum or note in writing. (10 Mo. 263; 15 Mo. 369.) The delivery of possession, making lasting improvements, and the payment of the purchase money, are sufficient to entitle the plaintiff to a decree of title. (15 Mo. 369; 25 Mo. 63; 23 Mo. 423; 21 Mo. 331; 19 Ala. 481; Browne on Stat. of Frauds, 482.)

NAPTON, Judge, delivered the opinion of the court.

There are difficulties in allowing Mrs. Collins' conversation with the plaintiff in 1854 to set up the deed, executed in 1853, as a sufficient memorandum in writing within the statute of frauds. That deed, not having been acknowledged according to law, had no validity as a deed against Mrs. Collins, and as a contract, could not bind her, as she was at the time of its execution feme covert. Although a nullity in the law, it had however a physical existence; and as it contained a distinct account of the sale of the land, a minute description of the land itself and a specification of the terms of sale, it might very well have been adopted, or ratified, by a subsequent agreement, if that subsequent agreement was in the form required by the law. In such case it is obvious that the binding force of the contract is in the subsequent agreement and not in the deed, and the agreement must therefore be in writing. If the deed can be adopted or set up by a mere parol declaration, made by Mrs. Collins after the removal of her disability of coverture, it would seem to let in all the evils which the statute was designed to guard against.

The case does not, however, in our opinion,...