Opinion
March, 1895.
Appeal from the chancery court of Monroe county, HON. BAXTER MCFARLAND, Chancellor.
Bill filed in 1884 by P. H. Haughton against Mary E. Peevey, for specific performance of an agreement to sell land. The bill alleges that in September, 1890, Mrs. Mary E. Sartor (now Mrs. Peevey), made and signed a written agreement for the sale of certain land, described in the bill, the agreement being in the following words: "This writing witnesseth that I have this day sold to P. H. Haughton the following tract or parcel of land, in Monroe county, Mississippi, described as . . for forty bales of cotton of five hundred pounds each, and on payment of ten bales each year for four years, with the understanding that the said Haughton shall have possession of said lands the first of January, 1891."
The bill, which was signed and sworn to by Haughton, alleges that he has always been ready and willing to comply with the terms of contract on his part, whenever defendant should make and deliver to him a sufficient deed to the land. The bill also seeks to have certain errors of description corrected, and prays that the contract of sale be specifically performed. It also contains a present offer to specifically perform the agreement on part of complainant; and prays that if the defendant be unable to specifically perform, that she be required to pay damages for breach of the contract.
Defendant demurred to the bill, on the ground, among others, that the alleged promise of complainant to deliver cotton in payment of the land was void, being a promise not to be performed in a year, and was not signed by complainant, or anyone by him authorized, and because the instrument sought to be enforced was founded on no consideration good or valuable in law. Defendant appeals from a decree overruling the demurrer.
E. H. Bristone, for appellant.
The instrument is not a mere promise to convey, and, therefore, executory, but it is a deed already executed. True, there is no acknowledgment, but this is not a suit to compel acknowledgment of the deed. The instrument being already executed, there can, of course, be no specific performance, nor can there be any recovery of damages, because the measure of damages is the purchase money and interest, and here there is none. Brooks v. Black, 68 Miss., 161.
Granting the instrument to be executory, the contract is without consideration, and a mere madum pactum. The consideration for the promise of Mrs. Sartor is the promise of Haughton to deliver cotton in 1891, 1892, 1893, 1894. It is a promise not to be performed in one year, not being signed by Haughton, and is void. We do not object to the validity of unilaterial contracts for sale of land signed by the party charged. Such a contract, signed by the vendor, may be enforced, though not signed by the vendee. This is not a question of both vendor and vendee signing a contract for sale of land, but one of consideration or want of consideration. It is only where the consideration is good that specific performance can be had. In Marqueze v. Caldwell, 48 Miss., 23, there was no question of consideration involved. The absence of Haughton's signature to the promise does not affect the mutuality of the trade, but, not being one to be performed in a year, it does affect the consideration. If one installment of the purchase price is not to be paid in a year, the whole consideration comes within the statute of frauds. Browne on Stat. of Frauds, § 285.
Where the consideration of one promise is another promise void under the statute of frauds, the first promise is also void. Browne on Stat. of Frauds, §§ 116, 117. See, also, 13 Vt., 21; S Johnson, 195; 11 Mass., 341; 5 Ib., 133; 6 Metc., 319; 5 Cowen, 162.
All that Mrs. Sartor got for her land was a promise void under the statute of frauds. Nelson v. Lawson, 71 Miss., 819. Catlett v. Bacon, 33 Miss., 269, is exactly in point. Metcalf v. Brandon, 58 Miss., 841, is no authority for the contention that the bill of complaint filed in 1894 is a sufficient promise in writing to deliver cotton in the years 1891, 1892, 1893, 1894. The time of the performance of this contract is long since past, and it is not in complainant's power to perform according to its terms.
George C. Paine, on same side.
1. It is apparent from the agreement that it was not to be performed within a year, and, as appellee did not sign any obligation, he is not bound. 2. There is no consideration for the alleged contract, appellee's agreement to pay being void under the statute of frauds. Appellant could not enforce her right against appellee, as she had no valid demand existing in her favor against him. 55 Miss., 77; 58 Ib., 820; 59 Ib., 45; 71 Ib., 820.
R. E. Houston, on the same side.
E. O. Sykes and W. H. Clifton, for appellee.
The contract is signed by Mrs. Sartor, the party sought to be charged. The contract, though unilateral, is yet enforcible. Complainant offers to perform, and thus the mutuality of the contract is established, and all trouble is met and overcome. This question has been adjudicated often by this court. Marqueze v. Caldwell, 48 Miss., 23; Williams v. Tucker, 47 Ib., 678; Welborn v. Bishop, 62 Ib., 341. See, also, 35 N. E. Rep., 392; 54 N. W. Rep., 834; 18 At. Rep., 834; Ib., 979.
1. STATUTE OF FRAUDS. Contract to sell land. Not signed by rendee.
A written agreement for the sale of land is enforcible against the vendor who signed it, though neither the agreement nor any contract to pay the price was signed by the vendee, where such vendee afterward offers in writing to perform the contract. The offer makes the contract mutual, and it cannot be said there is a want of consideration. Catlett v. Bacon, 33 Miss., 269, explained.
2. SAME. Promise to pay in commodity. Bill for performance.
An offer to pay the agreed price contained in a bill brought by the vendee for specific performance, and signed by him, is sufficient as an offer to perform; and where the promise is to pay for land in cotton, to be delivered at certain times, and in certain quantities, an offer to perform by payment of the money value of the cotton at the time and place specified, to be ascertained by accounting, is sufficient, and this, although the bill be filed after the time fixed for delivery of the cotton. Metcalf v. Brandon, 55 Miss., 841, cited.