Pasquay v. Keithley

Mr. Justice Thompson

delivered the opinion of the court.

The will of Emilie Pasquay directed that her real estate should be by her executors converted into money and divided amongst the children in equal shares, except that $4,500 was to be set apart and the income paid semi-annually to Ida Pasquay, appellee, and at her death the principal divided among her brothers, their heirs or assigns.

The bill alleges that before the will was probated' in March, 1903, the complainant and her three brothers, who were all of age and were the only persons interested in "the estate, made an agreement that the real estate in controversy should not be converted into money for the purpose of distribution, as directed by the will, but that it should be conveyed to complainant in lieu of the $4,500 bequeathed to her by her mother, and that at that time Ernest, Rudolph, and Albert delivered to complainant exclusive possession of said real estate and she then entered into possession, and has remained in possession ever since. This contract, while not in writing, was one that the parties thereto had the right to make and carry out.

An oral contract for the sale of lands may be as obligatory on the parties to it as a written contract where they make no objections themselves that it is not in writing; and in equity a defendant cannot avail himself of the Statute of Frauds unless he pleads it. School Trustees v. Wright, 12 Ill., 432; Kelly v. Kendall, 118 Ill., 650; Wilson v. Mason, 158 Ill., 304. But the defense of the Statute of Frauds is personal, and cannot be made by persons who are neither parties nor privies thereto. It does not lie in the mouth of a third person to object for the parties to a contract that they are not bound by its terms because it is verbal. Creditors are not privies to contracts of their debtors and cannot interpose the Statute of Frauds. Singer, Nimick & Co. v. Carpenter, 125 Ill., 117. The parties to the contract neither claim the benefit of the Statute of Frauds nor defend, but by their default admit its validity, and appellant not being in privity with any of the parties cannot be heard to say it is not-a valid and binding contract. The general demurrer of appellant admits the truth of the allegations well pleaded, amongst which are that the interest of Albert Pasquay was sold to appellee in March, 1903, more than a year before the attachment was sued out, that appellee at that time took the exclusive possession of said property and has remained therein continuously ever since, and that she took the same as payment of $4,500, part of her share of the estate. By that contract Ida Pasquay became the equitable owner of the property for a valuable consideration, and being in possession of it, appellant could not by his attachment obtain any greater right than Albert Pasquay had at the time of the attachment.

Appellee’s possession of the real estate was notice to appellant of her equitable rights. Maghee v. Robinson, 98 Ill., 458; Boyer v. Chandler, 160 Ill., 394. The equitable rights of a purchaser of real estate who has paid the consideration and is in possession will he protected in equity, and possession is notice of all his rights. Gallagher v. Northrup, 215 Ill., 563; Simonton v. Godsey, 174 Ill., 28; Moore v. Flynn, 135 Ill., 74.

The parol sale by three of the legatees to the remaining legatee was not void. “The parties to a parol contract for the sale of land might surely consummate it at any timo, and unless one of them chose to interpose the statute as a legal defense to an action for refusal to consummate such an agreement, it would evidently he obligatory.” Whitney v. Cochran, 1 Scam., 209. “Practically all the writers on equity jurisprudence are agreed that contracts not under seal, and even contracts not in writing affecting or concerning an interest in land, are recognized in equity if they have been so far performed that to permit a party to repudiate them would of itself be a fraud,—and this court is committed to this doctrine.” Ashelford v. Willis, 194 Ill., 492. When the contract between appellee and her brother was made in March, 1903, and appellee placed in the exclusive possession of the lot in controversy, Albert Pasquay had no equitable interest in the lot whatever, and appellant could not by levying an attachment obtain any greater right than his debtor had. The equities of appellant as a subsequent attaching creditor were not of equal right -with those of appellee, and the demurrer was properly overruled.

The bill does not allege that Keithley had obtained a deed under his certificate of purchase, and therefore no freehold is involved. Helton v. Elledge, 199 Ill., 95.

The decree is affirmed.

Affirmed.