
    James S. Negley v. Frank Jeffers and others.
    1. A plaintiff in a pending action does not divest himself of his interest therein, nor of the right to prosecute the same, by his voluntary application to become bankrupt. Unless ho is adjudged a bankrupt, his rights in the subject-matter of the action are not transferred or affected.
    2. Whether an undertaking for a second trial, in proper form and amount, and approved by the clerk of the court, but signed by the surety only, is in compliance with the statute — quaere.
    3. Such an undertaking filed by the party demanding a second trial, and approved by the clerk of the court, is a proceeding within the meaning of section 137 of the civil code, and may, in furtherance of justice, be amended.
    4. The court may allow the amendment to be made, either by permitting the party, with the consent of the surety, to subscribe the undertaking on file, or by allowing the party to enter into a new undertaking.
    5. The act of May 13, 1861 (S. & S. 585), is not in conflict with, nor restrictive of, the power to permit amendments in proceedings authorized by section 137 of the code. This statute relates to cases where a second trial undertaking has been given, and the surety has removed from the county, or the undertaking is insufficient or insecure; while section 137 of the code permits the correction of errors and mistakes in such proceeding in the discretion of the court, in furtherance of justice.
    6. When a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determines the time when the purchase-money becomes due, are not affected by the statute of frauds.
    
      7. When such title has passed, and part of the purchase-money is paid, and the time when the balance shall become due is fixed, by a written contract between the parties, and is made to depend on the prior removal by the vendor of certain leases from the property conveyed, such prior performance by the vendor is a condition precedent to the payment of the residue of the purchase-money.
    8. A subsequent contract between the parties, by the terms of which the vendee, for a valuable^eonsideration received, agreed to waive his right to insist on the performance of such conditions precedent, and take the property subject to the incumbrances, and pay the balance due, is not a. contract within the statute of frauds, and may be proved by parol.
    Error to the District Court of Morgan county.
    The plaintiffs below, defendants here, brought their action against plaintiff in error, alleging that, on the 2d of February, 1865, he was indebted to them in the sum of $9,000,. for certain property sold him, which amount he promised, but has failed, to pay; and that, on the 19th of June, 1865, for certain considerations, the plaintiffs abated $2,000 from this amount, leaving $7,000 due. The prayer is for judgment for $7,000, with interest on $9,000 from February 2, 1865, to June 19, 1865, and interest on $7,000 from that date.
    The answer sets up as a bar the following statement of facts: That, on the 2d of February, 1865, the defendant agreed to purchase of plaintiffs certain lands, and a lease of land, situate in Morgan county, for the sum of $27,000; that, on examination of the title, it was ascertained that the legal title to the land was in one William Corner, and the plaintiff had agreed to pay said Corner $16,000 for this farm, and, by consent of parties, the defendant paid Corner the $16,000 purchase-money due him, as part of the $27,000, and also paid plaintiffs $2,000, leaving $9,000 due on the purchase of plaintiffs. On account of certain incumbrances on the land, and also on the lease, it was then agreed that this balance should not be paid until these incumbrances were removed.
    This agreement was in writing, and under seal, and was; annexed to the answer, and made part thereof.
    It recites that whereas the defendant had purchased of plaintiffs a tract of land of 120 acres, for which defendant had paid 'William Corner, the owner, $16,000 for plaintiffs, .and to which Corner bad made a deed to the defendant; and whereas, also, Jeffers, one of the plaintiffs, had transferred to defendant a lease from Elza Willis to him, in which there was an error in the description of the property leased, and also on which there were two mortgages in favor of one James K. Jones, for $1,100; and whereas, .also, the tract of land conveyed by Corner was incumbered by a number of leases, v hich are specified, it was agreed by the plaintiffs, in consic eration of the payment to Corner •of $16,000, and to themselves of $2,000, that the deed from Corner to defendant should be deposited with E. W. Wood, “to be held by him for the benefit of said Negley, and to deliver to him upon the payment to [by] him of the residue of the purchase-money; ” and they further stipulated: “ That they will cause all the aforesaid incumbrances to be discharged of record, so as to leave the title of the land purchased of Corner, and the lease assigned by Jeffers from Willis, free and clear of all incumbrances, and this covenant shall be a condition precedent to the payment of any further moneys under the contract aforesaid between said Negley and said Simmons, Mason, and Jeffers, in case we can not procure Elza Willis to correct or give a proper description •of the property named in the lease aforesaid, or to remove the incumbrances on the same; then, and in that case, we .agree to cause to be transferred to said Negley a lease of an equal quantity of ground, upon the same terms and conditions of said lease, and containing ground of equally desirable oil territory; and as soon as all the above incumbrances ,are removed, then the residue of the above moneys, as above stated, is to be paid, on giving the said Negley ten days’ notice.”
    The answer avers that the defendant has never been advised that said incumbrances have been removed, and, even if they were, he is entitled to ten days’ notice of the fact, before the money became due; nor has the description in the Willis lease been corrected, nor another lease in lieu of it been tendered to him, as provided in the agreement.. He therefore denies that the money is due.
    To this answer the plaintiffs reply that after making the-conveyance by Corner to defendant, and in consideration that the plaintiffs would deduct $2,000 from the $9,000, and of $1,000 paid by plaintiffs to defendant, he agreed to release- and discharge the said plaintiffs from all obligations'to-clear' the title of said premises so sold by them to him, said defendant, and so by them procured to be conveyed by said Corner to said defendant as aforesaid. And in consideration of said abatement and payment the said contract was^ in that respect altered, and said defendant then and there agreed to pay the sum of $7,000.
    A supplemental answer was filed, that, since the bringing of this action, Simmons, one of plaintiffs, “ has applied for the benefit of the bankrupt act of the United. States” in the northern district of New York, on the 30th of May, 1868, and that his assignee should be made a party to this suit.
    A demurrer to this answer was sustained, and defendant excepted.
    At the June term, 1869, the case was tried by jury, and verdict rendered for defendant.
    A second trial urns demanded by plaintiffs, and allowed,, and the undertaking filed by the court.
    Within the time and in the proper form and amount an-undertaking, not signed by plaintiffs, but by E. M. Stanberry,. surety, was filed and approved by the clerk, and the case - placed on the docket for a second trial.
    At the next term defendant moved to set aside the order for a second trial, because there was no undertaking as required by law.
    Thereupon plaintiffs moved: 1. Eor leave to permit plaintiffs to subscribe the undertaking on file; or, 2. Eor ■ leave to amend by filing a new undertaking. The defendant’s motion and plaintiffs’ first motion were overruled, and-each excepted, and plaintiffs’ second motion was granted,., and a new undertaking filed, to which defendant excepted..
    
      The case was again tried by jury, and verdict rendered for plaintiffs as prayed for; a motion for a new trial was overruled ; bill of exceptions taken by defendant, and judgment rendered on the verdict.
    The grounds of this motion were :
    1. That improper evidence was admitted
    2. Evidence for defendant was improperly ruled out.
    3. Error in admitting evidence of a parol contract concerning land.
    4. That the verdict is against the evidence.
    The bill of exceptions shows the proceedings on the motions relating to the second trial, as before stated, with copies of the original and new undertaking, and then recites that the contract of February 2, 1865, was offered in •evidence, and that the plaintiff offered to prove that afterward, on the 19th of June, 1865, the parties verbally agreed to another contract, “ by which said written contract was ■superseded in this, to wit, that by said verbal contract it was agreed that the defendant, in consideration of a remission of $2,000 of the purchase money still unpaid, and a remission of $1,000 on another contract theretofore existing between them, released the plaintiffs from the obligation to remove the incumbrances from the Corner farm, and assumed the burden of removing the said incumbrances, and took the farm subject to them.”
    To the admission of this evidence the defendant objected, but the objection was overruled, and the plaintiffs were permitted to give testimony touching such verbal contract; .also tending to show that this verbal contract of June 19, 1865, had been partly performed by the parties; that plaintiffs at the time of its execution paid defendant $1,000, and verbally remitted $2,000 of the purchase money of the Corner farm, and that defendant has ever since been wholly irresponsible.
    The evidence further tended to show that plaintiffs thereafter ceased to make any effort to remove the incumbrances, being leases from the Corner farm, and defendant went into possession of it in June, 1865, and so remained until after judgment in this case ; also showing that after said verbal contract the defendant, by his agent, purchased in one of said leases, and had it assigned to one Wertz, of Pitts-burg, for defendant’s benefit, and that defendant acquiesced in and acted on said verbal contract until about the commencement of this action. The defendant offered evidence tending to disprove all the foregoing facts, and also denying that said verbal contract had been performed.
    On error to the District Court of Morgan county the judgment was affirmed.
    
      Ball & Hanna, for plaintiff in error :
    1. Did the court err in permitting a second trial ? There was no sufficient bond. 2 S. & C. Stat. 1155, secs. 691, 704; Ib. 1016 ; Ib. 1004; S. & S. 546; S. & C. 110, 222, 239, 718, 764, 569, 968, 992, 1404, 1584, 1136, 1007, 1104, 1162; 6 Bacon’s Ab. 392. And the court of common pleas acquired no jurisdiction.
    There could be no amendment of the undertaking. S. & S. 586; S. & C. 989, sec. 137; 3 Comstock, 337; 16 Ohio St. 1.
    2. Parol evidence was not admissible to prove a contract concerning an interest in lands. 11 Ohio, 455; 1 Scho. & Lefr. 306; 15 Johnson, 200; 7 Cranch, 176; 1 Greenl. Ev., sec. 264; 2 Har. & Gill, 433; 10 Watts, 195; Goodrich v. Nichols, 2 Root, 498; Kidder v. Hunt, 1 Pick. 328; Scott v. McFarland, 13 Mass. 309; Boyd v. Stone, 11 Ib. 342; Bliss v. Thompson, 4 Ib. 488; Patterson v. Cunningham, 3 Fairfield, 506; Haseltine v. Seaney, 4 Ship. 212; 2 Marshall, 33.
    
      E. M. Stanberry, for defendant in error:
    The original undertaking was sufficient. The purpose of the undertaking in a second trial is not to obligate the parties to abide and perform the judgment of the court on such second trial, but that the parties should give security for the performance of the judgment. The security is the sole object to be attained by the undertaking. The principal is held for the performance of the judgment by the decree of the court. 6 Ohio St. 84.
    
      The amendment permitted by the court was proper.. Code, sec. 137.
    On the admission of parol testimony, see Fry on Contracts, 403, 404, 690; Reed v. McGrew, 5 Ohio, 375; 2 Parsons on Contracts, 553, 554; Malins v. Brown, 4 Comst. 403.
   Johnson, J.

Three causes are assigued why this judgment should be i’e versed :

1. That the coux’t exred in sustaixxing the demurrer to the-supplemental answer.

2. That the court erred in allowing a new and amended undei'taking for a second tx’ial.

3. That there was error in admitting proof of the verbal conti-act of June 19, 1865, to relieve plaintiffs from the-conditions precedent iix the written contract of Eebruax-y 2,1865.

I. Did .the coux’t err in sustaining a demuri-er to the supplemental answer? That answer stated: “That since the-bringing of this action, that Alan son R. Simmons, one of the plaintiffs in this case, has applied for the benefit of the bankrupt act, . . . and that his assignee should be-made a party to this suit.”

The answer does not aver that he had been adjudged a bankrupt, or that an assignee had ever been appointed. Without-considering the effect of sec. 39 of the code, which provides-that “in case of any transfer of ixxterest, the action may be continued in the name of the original party,” in case Simmons had been adjudged a bankrupt, it is enough to-say, the plea is insufficient to create a legal presumption-that such transfer had taken place.

The mex-e filing a petition asking to be adjudged a banknipt, does not per se operate as such transfer.

II. Did the court err in ovex-rulixxg defendant’s motion to dismiss the case from the second trial docket, and in granting plaintiffs leave to amend by the filing of a new undertaking ?

The only defect in the oxlginal undertaking was that it was not subscribed by the plaintiffs; otherwise it was unobjectionable.

The statute (2 S. & C. 1155) provides that the party demanding a second trial “ shall enter into an undertaking, . . . with surety; ” and it is claimed, as this is a jurisdictional matter, the court had no power to amend, as the giving of such an undertaking was a condition precedent to a vacation of judgment, and, while that judgment remains, the court had no jurisdiction to entertain the motion.

It is further claimed that the only power to amend in such eases is found in the act of May 13, 1861 (S. & S. 586), which only provides for amendments where the party has entered into an undertaking, and only then for the causes therein specified.

"We can not assent to either of these views.

It has already been decided, in case of an appeal bond, that it is a “ proceeding ” under the 137th section of the code of civil procedure, which may be amended so far as any mistake exists. Irwin v. Bank of Bellefontaine, 6 Ohio St. 81.

Counsel claim that if that case is good law, then the act of 1861, already cited, is subsequent legislation, restrictive of the broad doctrine of that ease, and operates as a limitation on the power to amend; but if it is not good law, then the act of 1861 is an enabling act, granting to the court power which it did not possess.

The mistake of this argument arises from supposing that the act of 1861 covers the same ground as the 137th section of the code, and was intended t<? take its place, or, at least, to provide for the same class of defects. The code, section 137, as construed by the court in 6 Ohio St. 81, provides that “proceedings” may be amended, in furtherance of justice, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect.

The statute provides that where the surety has removed from the county, or the undertaking is for any cause insufficient or insecure, the court shall, on motion, order a new undertaking, and, if the order is not complied with, shall render the same judgment as on the first trial.

The 137th section of the code and this statute relate to different defects in proceedings for a second trial.

The code provision is for the benefit of the party making a mistake, and authorizes the court, in furtherance of justice, to permit him to add or strike out the name of a party, or correct a mistake in the name of a party or in any other respect.

The statute relates to the sufficiency and security of the undertaking. It is for the benefit of the obligees. If the surety has moved out of the county, or the undertaking is, from any cause, insufficient or insecure, the court shall order a new undertaking to the satisfaction of the clerk, and if it is not given, the same judgment shall be rendered as on the first trial.

These provisions of the code, and of the statute, as to proceedings for a second trial, are the complement of each other, and together provide for all eases of mistake in the undertaking, and for all cases where the undertaking does not make the obligees secure.

By the case of Irwin v. Bank of Bellefontaine, supra, it was settled that the court had power to correct such mistakes and omissions as the one before us.

The act of 1861, and the prior act of 1860, was intended to, and does, provide for a different defect.

Another object of that act was to authorize the court, if the order requiring additional security was not complied with, to dispense with the second trial, and enter up the former judgment.

But for this act, if, from any cause, the undertaking became insufficient, the court must still go on with a second trial, thus giving a party the benefit of another trial, without good security.

This statute, in such case, dispenses with a second trial, and, as a penalty for non-compliance with the order of court, compels him to submit to the same judgment as on the first trial.

We have not found it necessary to decide whether or not this undertaking, without being signed by the plaintiff, was sufficient, as we are clearly of the opinion that, if defective, the defect wTas one provided for by the 187th section of the code.

The court might, in furtherance of justice, with the assent of the surety, have permitted the additional names to have been added, or, what was perhaps the better mode, allow a new' undertaking.

III. It is claimed the court erred in permitting evidence of a verbal contract, made in June, 1865, by which the stipulations of the written contract of February, 1865, was modified as to the time of payment.

By the written contract defendant was not to pay until all incumbrances were removed from the farm and the lease.

By the verbal contract, w'hich we must assume was proved as alleged to the satisfaction of the jury, the time of payment was changed.

In consideration of the remission of $2,000 from the purchase money, and the payment in cash of $1,000, the defendant agreed to waive altogether the obligation to remove the incumbrance on the farm, and to relieve defendant from the condition precedent as to the lease. The action wms to recover the purchase money for land already conveyed.

The conveyance had been made, and the deed was delivered to Judge Wood to be held as an escrow until payment of the balance of purchase money.

One of the allegations of the reply was that in consideration of this abatement and payment the defendant then and here agreed to pay. The bill of exceptions does not purport to set out the evidence, and we must presume, in support of this verdict, that this allegation was proved.

Aside, therefore, from that part of this verbal contract relating to the incumbrances on the farm, we have an agreement in parol, executed by plaintiffs, whereby the defendant waives the conditions precedent to payment, and binds himself to pay then and there.

But, taking the whole verbal contract, it was not a contract concerning land, or any interest in land, but related only to the time when, and the conditions under which, he would pay the purchase money, when the title had already passed from plaintiffs.

In case of a verbal contract for the sale of land, followed by a conveyance of the title, the vendee can not defeat a recovery of the purchase money by a plea that the contract was not in writing.

Where a deed has been executed, or a title in any way passed, agreements between the parties as to pecuniary liabilities growing out of the transaction, but not going to take any interest in the land from the grantee, are not affected by the statute of frauds. Browne on Stat. of Frauds, sec. 270; Hurd v. Mott, 1 Root, 73; Green et al. v. Vardiman, 2 Blackf. 324.

Where the original contract is in writing, as required by the statute, it may be varied as to the time of payment, or wholly -waived or discharged as to such payment by subsequent parol contract founded on a new consideration. Cummings v. Arnold, 3 Met. 489; Stearns v. Hall, 9 Cush. 31; Bever v. Butler, Wright, 367; Reed v. McGrew, 5 Ohio, 376; Bethel v. Woodworth, 11 Ohio St. 393.

A covenant to procure the discharge from the record of a mortgage or the time of performance of a written contract within the statute may be enlarged as to time of performance by a verbal contract. Keating v. Price, 1 John. Cas. 222; Fleming v. Gilbert, 3 Ib. 528; Stearns v. Hall, 9 Cush.

The only change, so far as plaintiff’s right to recovery of the purchase money is concerned, was to relieve them from performances of the conditions precedent.

In case of the farm, they were released from their obligation to remove the incumbrances, but this obligation as to the lease still subsists in full force. The defendant merely waived the right to insist on its performance before payment.

The statute of frauds prevents an action to charge any person on any verbal contract for the sale of land or any interest in land.

This land had been sold and conveyed. By this verbal contract the grantee did not agree to part with any interest in the property purchased, nor did the grantors agree to convey or release any interest in the land, for that had already been done by the deed.

They mutually agreed, in consideration of the abatement and payment of $3,000, that the balance of the purchase money should be paid without the performance of the conditions precedent by plaintiffs..

The money was owing to the plaintiffs, but their right to recover it depended on their removing these incumbrances.

The defendant agreed to waive his right to insist on such performance before payment.

This contract was based on a new and distinct valuable consideration. It was executed by the abatement and payment of $3,000 by plaintiffs, and partly executed by defendant, who took possession of the farm, and took steps to remove the incumbrances himself. We are of opinion that this was a contract not within the statute of frauds, and that the verbal contract under the circumstances was valid, though resting in parol. Thurston & Hayes v. Ludwig, 6 Ohio St. 1.

To hold otherwise, after the defendant had obtained the consideration, taken possession of the farm, and by his acts placed it out of the power of plaintiffs to perform their covenant as to the leases on the farm, would be to convert the statute for the prevention of frauds into one to protect and encourage fraud.

Judgment affirmed.  