Allen v. Booker , 2 Stew. 21 ( 1829 )

By JUDGE TAYLOR.

It is considered unnecessary to enter into a minute investigation of the doctrine which governs parol contracts for the sale of land, under the statute of frauds. Our statute is in the precise language of that of England, and of a majority of the States. The constructions given to the statute by the Courts of Westminster, are well known. They have determined many cases to form exceptions, notwithstanding the comprehensive terms of the statute; and numerous decrees have been made by t]le Chancellors of that country by which the specific per» forman ce of such contracts has been enforced. The reasons for this departure from the letter of the statute, given jn those decisions is, that in the several cases in which the decisions have been made, the defendants were endeavoring to use the statute to effect a fraud upon the plaintiffs; and that it could never have been the intention of the Legislature, that a statute made to prevent fraud, should be so expounded as to give a reward to him who practiced fraud.

It has been much questioned, even in England, whether the most correct course for the Courts to have adopted, would not have been rigidly to execute the statute in accordance with its words; and many of the most enlightened Judges of that country have expressed great regret that it has ever been departed from, except in cases of a most extraordinary nature. In modern times, there is a much greater indisposition to decree the specific performance of a contract of this description than formerty: and the Courts manifest a great inclination again to take shelter under the wings of the statute, from which they had so greatly departed. The observations of Lord Redesdale, in Lindsay v. Lynch,^a indicate this in strong terms.

In the United States, the cases uniformly shew, that the Courts are rather inclined to restrict than to enlarge the cases of exception to the strict execution of the statute. In case of Grant v. Naylor,^b that distinguished Judge, Chief Justice Marshall, observes, “already have so many cases been taken out of the statute of frauds which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best Judges in England have been of opinion, that this relaxing construction of the statute ought hot to be extended further than it has already been carried, and the Court entirely concurs in that opinion. ”

In some of the States it has been determined, that the statute must be rigidly construed, and that no case whatever circumstances may be, will authorize an exception.^c

I am not prepared to go the length of the cases last cited. ^ur statute was enacted long after the construction given to that of England by their Courts, was known in this country; and we cannot suppose that the enlightened body which enacted it, was ignorant of the course pursued by the English Courts. If it had been intended to preclude the tJourts from departing from the letter of the law, words to i.h.«,t effect might easily have been inserted. But in the variety of decisions on this subject, I do not now recollec!. one which determines that the payment of part of the purch’se money authorizes a decree of specific performanco; nor can I conceive any good reason for such a decision. To authorize a departure from the statute in any case, the party asking it should be so situated, that no other remedy which the law can afford him, would place him in as good a situation as he was before the contract ■was made; in fact it must satisfactorily appear that the opposite party is using the statute as an engine of oppression. This would often be the case where possession had been given, and extensive improvements made by the purchaser. But in the present case, the defendant is the vendor, and the repayment of the money by him, will merely place him where he was before the contract was made, which would always be the case, in all instances, where there was nothing done by the parties to the contract, but simply the payment and receipt of tire purchase money.

I am therefore clearly of opinion, that neither the payment by the purchaser of apart or even the whole of the purchase money in such case, would of itself, take the case out of the sta-uie. Therefore, the Court erred in the in’Struetions given to the jury.

But it is objected, thareven should there have been error in this respect, yet the judgment cannot be reversed, for two reasons: 1st, By the terms of the statute, no suit is authorized to recover back the purchase money which has been paid; and 2d. The land which was the subject of the contract, is situated in the Arkansas Territory, and the contract must be governed by the laws of that Territory; and it doeánot appear to have been proved on the trial of the cause, that any such law has been enacted, in that Territory, as our statute of frauds.

The statute of frauds enacts, “that no action shall be brought whereby to charge the defendant upon any contract for the sale of lands, tenements or hereditaments, of the making any lease thereof, for a larger term than one year.” The clear object is to prohibit any suit to recover damages for- the breach of, or to enforce the agreement. But the present is not brought for either of these purposes, but is to recover money which the plaintiff alleges he has paid without consideration. The object is not to charge the defendant upon a contract by parol for the sale of lands, but to recover back money which the plaintiff alleges the defen lant has received of his. There is certainly no more clanger of the commission of a fraud or perjury i ’ a case of this kind, than in any other action for money, ^he reason of the law, therefore, does not extend to the case. But I am not left to determine from reason alone; express, authority is easily adduced on the subject. The case of Hunt v. Sanders,^a is precisely In point. That was an action of assumpsit, for money had and received, instituted by Sanders in a Circuit Court of Kentucky, to re'eover from Hunt, a'sum of money paid by him to the defendant on a parol contract for the purchase of land. The statute of that State is precisely the same with ours, and a recovery was had'in the Circuit Court, and the judgment affirmed in the Court of Appeals. In the case of Grant’s heirs v. Craigmiles,^b in delivering the opinion of the Court,^c which dismisses the bill filed for a specific performance of a pmol contract for the purchase of lands, Judge Bibb observes “But this is only a partial evil resulting from a general good; an evil however not entirely without redress, since a person who has paid a consideration, deemed valuable ia law, may have an action to recover back the consideration; although he cannot have the land itself for which it was paid.” In Myer v. Fisher,^d the Court observe: “But there is another ground on which the plaintiff had good right to recover the money received by the defendant on that note. It was received by the defendant without con-sideration; the contract for the exchange of farms was void by the statute of frauds, being by parol only. ” There can. be no doubt, therefore, but that the suit is well brought.

As respects the last point, the question which it involves docs not legitimately come before us on this investigation.Aa exception taken to the opinion of a Court, is generally accompanied by so much of the testimony given on the trial, as is sufficient to shew plainly the connection and materiality of the charge excepted to, with a correct decision of the case by the jury; and no more. It is not necessary to set out in the record, all the evidence which has been adduced in a cause, when much of that evidence can have no direct bearing upon so much of the charge of the Court as is objected to by rhe counsel taking the exception; nor will the appellate Court ever presume, that all the testimony' adduced before the inferior tribunal is set out in the record, unless it is so declare I to be, or unless it is perfectly evident from the record, that such is the faGt. A contrary pracÜcc would often burden records with much useless matter, and greitljr enhance the costs of parties. In this case it docs not certainly appear, whether it was on the statute of Arkansas Territory or of this State, that the charge of the Cir-mit Court was founded. It is true, the probability is, it was on the statute of Alabama; but from the record, it possibly rnav have been otherwise. But even were it on the statute of this State, the Court may previously have determined that the contract was governed by the laws of Alabama, or the question may never have been raised below. when if it had, and the production of a statute of Ar-. ka isas like our own was required, the plaintiff might either-have, produced the law: or if be knew it existed, suffered a «nonsuit; or upon an affidavit of surprise, applied for a new trial.^a I am, therefore, of opinion, thatthis last is no ground upon which the judgment can be affirmed.

For these reasons the judgment must he reversed, and j?e;m nled. And of this oninion is a majority of the Court.

Judge Saffolb, not sitting.

a 2. Sckoales andLefroy 5.

b 4 Cran. 235.

c 1 Bibb R 204. 3 Bibb 2. Also the case of M’Clure v. Patten, lately decided Court of App. of Tennessee.

a 1 Marshall’s Rep. 552.

b 1Bibb 203.

c Page 206.

d 15 John. R. 503,

a 11 Whea. 81..