Whitby v. Whitby

• Decision Date: 30 April 1857
• Citation: 36 Tenn. 473
• Parties: JESSE R. WHITBY et al. v. DAVID WHITBY et al.
• Court: Tennessee Supreme Court

36 Tenn. 473

JESSE R. WHITBY et al.

v.DAVID WHITBY et al.

Supreme Court of Tennessee.

April Term, 1857.

FROM SHELBY.

This bill was filed in the chancery court at Memphis, to obtain a specific performance of a contract evidenced by title bond for the sale of a lot in the city of Memphis. The bill was dismissed by the chancellor, and complainants appealed.

Wickersham and Turnage, for the complainants; Archibald Wright and Eldridge, for the defendants.

McKinney, J., delivered the opinion of the court.

This was a bill for the specific execution of a contract for the purchase of a lot of ground in the town of Memphis. The bill was dismissed on the hearing, and the complainants appealed to this court.

The complainants are the heirs at law of John Whitby, who died intestate in Shelby county in 1843; and the defendants are the children and heirs at law of his brother, Richardson Whitby, who likewise died intestate in said county in 1853.

On the 31st day of October, 1836, Richardson Whitby executed and delivered to John Whitby a bond for title to the lot in controversy, of which the following is a copy:

“Know all whom it may concern, that I, Richardson Whitby, of the State of Tennessee, Shelby county, for and in consideration of the sum of ______ received, do obligate myself to make to John Whitby of said State and county a full right and title to a certain lot of ground situated in said State and county, near the town of Memphis, and bounded as follows: beginning at the north-west corner of the country lot known by the No. 496, on the north side of the Nonconnor road, where formerly stood a poplar marked X; running thence (magnetic course) south, fifty degrees east, twenty-five rods; thence north, forty degrees east, twenty-seven rods intersecting the eastern boundary line of lot 496; thence north, forty-five degrees west, seventeen rods and seven twenty-fifths to an iron-wood, being the north-east corner of lot 496; thence south, fifty-five degrees west, twenty-nine rods to the beginning. Containing three and three-fourth acres. Now be it known that I bind myself, my heirs, etc., in the sum of four thousand dollars, to make, when called for, a full title to the above described lot of ground to John Whitby or his legal representatives, and on failure of which the above-named sum shall be forfeited to his benefit.

As witness my hand this 31st day of October, 1836.

Richardson Whitby. [Seal.]”

Soon after the execution of the title bond, John Whitby entered into possession of the lot, and retained the same until his death, a period of more than six years. No deed was ever made to him for the lot. After the death of John, Richardson took out letters of administration on his estate; and finding said title bond among the papers of the deceased, he took the same and voluntarily acknowledged its execution by himself, before the clerk of the county court, and caused it to be registered; and up to the time of his death he uniformly represented and treated said lot as the exclusive property of John Whitby during his life, and as the property of his heirs after his death, and never pretended any claim to the same, on the ground of the purchase-money being unpaid or otherwise. And, in addition to this, some time before his death, he purchased and took transfers from several of the heirs at law of John Whitby of their respective interests in said lot, derived by descent from him.

There is no other proof in the record in relation to the payment of any consideration ofr the lot by John to Richardson Whitby, except what appears upon the face of the title bond, and the admission of the latter, proved by one witness, to the effect that he had been paid for said lot. The bill in general terms alleges the payment of the consideration, without stating what it was, or how or when paid; and the answer denies this allegation.

A specific execution of the contract is resisted on two grounds: first, that the title bond is not of itself a sufficient writing, under the statute of frauds and perjuries; and, secondly, that the transaction was in fact a gift, without consideration, and not a sale of the lot; and, therefore, the complainants, being volunteers, can not enforce a specific execution of the contract.

The first objection rests upon the ground that the title bond does not disclose what the consideration was, or the amount. It is assumed that the note or memorandum of an agreement for the sale of lands must express the consideration as well as the agreement itself, and that the omission to state the consideration can not be supplied by oral evidence of its existence.

We are not aware that it has ever been held, upon the construction of our act of 1801, that the consideration must be stated in the writing. There is no controversy upon the point as to the necessity of a consideration having in fact been given, in order to the legal validity of an executory contract for the purchase of the land: that is not the question. It is simply whether it be indispensable, upon a proper construction of the statute, that the consideration shall be stated in terms in the note or memorandum of the agreement; or whether, if the writing be in other respects sufficient, the fact of the payment of a consideration may not be proved by parol evidence.

The general principle of the common law is that every contract not under seal requires a consideration to support it; but the consideration may be proved by parol as well as by written evidence. If the contract be under seal, a consideration is presumed. This doctrine, we suppose, applied as well to contracts in respect to lands as to...