Timberlake v. Heflin

• Decision Date: 13 March 1989
• Docket Number: No. 17978,17978
• Court: West Virginia Supreme Court
• Parties: Roxanne TIMBERLAKE v. Sherry L. (Timberlake) HEFLIN, et al.

Page 149

379 S.E.2d 149

180 W.Va. 644

Roxanne TIMBERLAKE v. Sherry L. (Timberlake) HEFLIN, et al.

No. 17978.

Supreme Court of Appeals of West Virginia.

March 13, 1989.

Syllabus by the Court

1. The prohibition in the statute of frauds against parol contracts for the sale of land, or the lease thereof for more than one year, is contained in W.Va.Code, 36-1-3, which provides in general that the contract or memorandum thereof must be in writing and signed by the party to be charged.

2. A pleading in a civil case may satisfy the requirement of a memorandum under W.Va.Code, 36-1-3.

3. The statute of frauds, as applicable to contracts for the sale or lease of land, is a procedural bar to prevent enforcement of oral contracts unless the conditions expressed in W.Va.Code, 36-1-3, are met. The operation of the statute of frauds goes only to the remedy; it does not render the contract void.

4. W.Va.Code, 36-1-3, contains two express requirements. The memorandum must be (1) in writing, and (2) signed by the party against whom performance is demanded. In addition to these express requirements, our cases require that the memorandum must contain a description of the involved land and must also contain the essential elements of the contract.

5. " 'Every agreement required by the statute of frauds to be in writing must be certain in itself or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable certainty. And in contracts for the sale of lands the court may go outside of the writing for the purpose of identifying and ascertaining the land sold, where general words of description capable of being made certain are used in the writing.' Point 2, Syllabus, White v. Core, 20 W.Va. 272." Syllabus, Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953).

6. After the execution of a valid contract of sale and before the legal title passes by deed, the vendor is regarded in equity as holding the legal title in trust for the vendee, and the latter as holding the purchase money in trust for the vendor. The purchaser thereby acquires a vendable interest, an equitable estate which, at his death, descends to his heirs in the same manner as a legal estate.

7. Where a joint tenant with a right of survivorship has contracted to buy a fellow joint tenant's interest, the death of the purchaser does not operate to permit the survivorship incident in the deed to transfer his interest, if the purchaser's heirs or administrator are willing to complete the purchase contract.

William R. DeHaven, Martinsburg, for appellant.

Cynthia Bowles, Bowles, Reynolds & Risavi, Martinsburg, for appellee.

MILLER, Justice:

We consider in this case the enforceability of a parol contract for the transfer of certain joint property between husband and wife. The Berkeley County Circuit Court concluded that the contract was unenforceable due to the lack of a memorandum sufficient to comply with W.Va.Code, 36-1-3. We conclude that there was sufficient compliance.

I.

Richard L. Timberlake and Sherry L. Timberlake were married on July 24, 1976. They purchased a two-bedroom home in Berkeley County on June 9, 1977. Their deed expressly provided that they were to hold the property as joint tenants with the right of survivorship. ¹

Mr. Timberlake asserts in this suit for specific performance that sometime prior to July, 1983, he and his wife (who has since remarried and is now named Ms. Heflin) contemplated a divorce. They entered into a parol contract for the division of their marital assets. Under that contract, Mr. Timberlake was to transfer his interest in a jointly owned automobile, motorcycle, and other personal property. Ms. Heflin, in turn, was to execute and deliver a deed for her interest in the marital home.

Mr. Timberlake's complaint states that on July 22, 1983, Ms. Heflin filed a suit for divorce in the Berkeley County Circuit Court. The divorce complaint was accompanied by a signed affidavit in which Ms. Heflin stated, under oath, that the averments set forth therein were true and accurate. One of these averments stated:

"Plaintiff [Ms. Heflin] says taht [sic] she agrees to convey her interest to the Defendant in the jointly owned real estate, to wit: a two bedroom home located in Berkeley County, West Virginia, and known for postal purposes as P.O. Box 42, Hedgesville, West Virginia."

Mr. Timberlake's complaint also stated that upon being served with the divorce papers, he took no action in reliance on the parol agreement with his wife. On August 31, 1984, the circuit court entered a final order that divided some of the couple's joint assets, but made no disposition of the marital home.

The complaint further averred that so far as the contract dealt with real estate, it was not subject to W.Va.Code, 36-1-3, the statute of frauds, as "there [was] a writing, ... duly verified and acknowledged, which operate[d] as an exception to said [s]tatute." Mr. Timberlake requested entry of an order to direct the transfer of fee simple title in the marital home. Ronald Heflin was joined so as to require transfer of his dower interest. ² Mr. and Ms. Heflin filed a joint motion to dismiss the complaint because the statute of frauds barred enforcement of Mr. Timberlake's claim.

By order entered on October 24, 1986, the circuit court dismissed Mr. Timberlake's complaint. The court concluded that the averments in the divorce complaint, relied on by Mr. Timberlake, "[could] not be taken as fact and must be independently proved." For this reason, the suit remained subject to the statute of frauds and was barred. This appeal followed. ³

II.

The prohibition in the statute of frauds against parol contracts for the sale of land, or the lease thereof for more than one year, is contained in W.Va.Code, 36-1-3, which provides:

"No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence." (Emphasis added).

This Code section is often referred to as the statute of frauds. However, our main frauds statute, found in W.Va.Code, 55-1-1, embraces a number of other contracts which, to be enforceable, must be in writing and signed by the party to be charged. ⁴

Mr. Timberlake's basic argument is that the divorce complaint filed by Ms. Heflin is a sufficient memorandum of their parol contract to meet the requirements of W.Va.Code, 36-1-3, and permit his suit for specific performance. Ms. Heflin says in response that the complaint contains bare assertions of fact and that it cannot, therefore, qualify as a memorandum. Thus, the initial issue is a rather limited one: Whether a judicial pleading can constitute a memorandum under the statute of frauds.

We note first that W.Va.Code, 36-1-3, does not itself specify a particular type of writing that is necessary to satisfy the memorandum requirement. Its wording suggests a degree of flexibility, as the language identifies several forms of writings: "the contract or some note or memorandum thereof." Certainly, our prior cases demonstrate that a memorandum under W.Va.Code, 36-1-3, need not take any particular form. E.g., Connell v. Connell, 131 W.Va. 209, 46 S.E.2d 724 (1948) (deed of trust); Tearney v. Marmiom, 103 W.Va. 394, 137 S.E. 543 (1927) (defective will); Lawrence v. Potter, 91 W.Va. 361, 113 S.E. 266 (1922) (telegram).

We recognize, as have other courts, that a pleading may, in appropriate circumstances, be sufficient to take a parol contract out of the statute of frauds. ⁵ In a related line of cases, representative of the modern trend, courts have crafted a "judicial admission" exception to the statute of frauds. Wemhoff v. Investors Management Corp. of America, 528 A.2d 1205 (D.C.App.1987); Wolf v. Crosby, 377 A.2d 22 (Del. Ch.1977); Kalman v. Bertacchi, 57 Ill.App.3d 542, 15 Ill.Dec. 204, 373 N.E.2d 550 (1978); Sealock v. Hackley, 186 Md. 49, 45 A.2d 744 (1946); Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946); Adams-Riker, Inc. v. Nightingale, 119 R.I. 862, 383 A.2d 1042 (1978); Powers v. Hastings, 20 Wash.App. 837, 582 P.2d 897 (1978), aff'd, 93 Wash.2d 709, 612 P.2d 371 (1980).

These cases hold that any admission of a contract made in the course of judicial proceedings will render the statute of frauds inoperative. The "judicial admission" exception is read broadly to include even parol admissions in depositions or in open court. This result is said to be in harmony with the policy that underlies the statute of frauds: Its purpose is to prevent the fraudulent enforcement of unmade contracts, not the legitimate enforcement of contracts that were in fact made. 2 A. Corbin, Corbin on Contracts § 498 (1950 & 1984 Supp.).

We also have settled law in this state that statements contained in pleadings may be judicial admissions and, therefore, conclusive of the facts so stated. Guthrie v. First Huntington Nat'l Bank, 155 W.Va. 496, 184 S.E.2d 628 (1971); Gardner v. Gardner, 144 W.Va. 630, 110 S.E.2d 495 (1959); Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182 (1949); F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.5(C) (2d ed. 1986).

It would appear to us that, under the foregoing law, a pleading in a civil case may satisfy the requirement of a memorandum under W.Va.Code, 36-1-3.

III.

It is important to recall that the statute of frauds, as applicable to contracts for the sale or lease of land, is a procedural bar to prevent enforcement of oral contracts unless the conditions expressed in W.Va.Code, 36-1-3, are met. Once they are met, then the terms of the oral contract can be proved. We summarized this principle in Ross v. Midelburg, 129 W.Va. 851, 866, 42 S.E.2d 185, 193 (1947): "The operation of the statute of frauds goes only to the remedy; it...