Maddox v. Rowe

By the Court. —

Benning, J.

delivering the opinion.

Was Shadrack Rowe, the complainant in the bill, entitled to have a specific performance of his father’s promise to devise to him, the two lots of land mentioned in the bill? If he was, there is equity in the bill; and if there is equity in the bill the overruling of the demurrer was right.

It is a general principle, that part performance of a verbal “ contract or sale of land” takes the contract or sale out of the statute of frauds. This principle has been recognized and acted on, by this Court. Gilmore vs. Johnston et al. 14 Ga. R. 683; and see Sto. Eq. § 759, et seq.

In the present case the “contract” on one side was, that the son should convey a lot of land to the father. And the son, accordingly, conveyed the lot to the father.

Now, unless we allow an “action” of some kind, to be brought upon the “contract,” by the son, he will lose this land without recompense, and the father, or his heirs, will gain it without cost. Such a result would amount to a fraud on the son, by the father, or his heirs.

The statute of frauds was not made to be used as the means of perpetrating fraud. It was made for the opposite purpose.

It is necessary, then, to say, that an “action” of some sort, may be brought by the son on this verbal “contract.” And there does not seem to be any reason why this action should not be one for a specific performance. The statute will tolerate that, as easily as it will any.

There is also in the present case, this fact: The father made in writing, -what he thought was his will, and in that writing, he said, that he gave the two lots of land in controversy, to the son. The contract, on his side was, that he should give these two lots to the son. Here, then, is a writing that may serve to help to prove the contract. The case is such, therefore, that it is not left wholly at the mercy of parol evidence. True, this writing was void, as a will, but that did not'prevent it from being good, to help to prove the contract. 2 P. W. 244. See Com. Dig. “Chancery,” 2. C. 4.

In this respect, at least, this case differs from Robson vs. Harwell and wife, 6 Ga. R. 589, and from Miller and others vs. Cotton and others, 5 Ga. R. 341.

In conclusion, I must say for myself, Siat I doubt extremely whether this case is not one of those whichfhe statute of frauds expressly excepts from its operation. By the 8th section of that statute, it is “provided,” “that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the impli- • cation or construction of law” “then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if” the “statute had not been made.’5

When there is an agreement or contract for the sale of lands, the vendor becomes a trustee of the land, for the vendee. This is a principle which will not be denied.

Now this trust thus acquired by the vendee, must be a trust that arises or results “by the implication or construction of law.” There is no other way by which, it can get into existence. The contract or agreement of purchase, does not say that there shall be this trust.

And in the present case, there was a “conveyance,” viz: from the son to the father, and it was by means of that conveyance, that the agreement or contract became one that was binding by the law as the law stood before the time of the statute of frauds. It may, therefore, be said, that this conveyance was that thing “by Avhich” the trust arose or resulted.

If so the trust is one that is expressly excepted from the operation of the statute of frauds, by the statute itself.

Upon the Avhole we think that the son was entitled to have the contract specifically performed, and therefore, Ave think that the Court belorv was right in overruling the demurrer

Judgment affirmed.