Woodward v. Smith , 7 Ala. 112 ( 1844 )

GOLDTHWAITE, J.

— We do not see upon what reason this case can be brought within the statute of frauds as a contract or agreement for the sale of lands. The son at the request of the father, conveys land to a third person, to whom the father had sold it, and consents that he may receive the notes given for the price. Under these circumstances, there must have been either a trust on the land for the benefit of the father or a gift of it by the son; or the father must have received the money on the notes to the use of the son. It ,is supposed, however that no assumpsit can be raised, inasmuch as the promise is not in writing; but in Lamar v. Price, 2 Bing. 437, it was held, where an oral bargain for the purchase of land had been transferred to a third person, and a conveyance afterwards made to his nominee, that he was liable to pay the sum agreed on, although the original contract, not being in writing, could not be enforced. In that case the contract with the third person was in writing, but this fact is of no importance, as the contract was executed by the conveyance of the land to his nominee. In Griffith v. Young, 12 East. 513, a tenant agreed with his landlady, that if she would accept another for her tenant in his place, (he being restrained from assigning the lease without her consent,) he would pay her a certain sum of money out of a larger sum which he was to receive ; and it was held he was liable on this agreement, although it was -not in writing, the contract having been executed. Indeed we cannot perceive-any sound distinction between a conveyance to the bargainee of land, and a conveyance to one at his nomination; and we have heretofore held that assumpsit might be brought .when a deed had been executed.and accepted, although the contract of purchase was oral only; and such is the settled law in Kinlock & Lewis v. Graves, 7 J. J. Marsh 336.

-We are informed only of one of the questions before the jury, but they probably inferred a promise to pay as soon as the proceeds of the notes given for the land should be realized We are not authorized to disturb the verdict on the exception taken. Judgment affirmed.