
    FRAUDS, STATUTE OF
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and -Winch, JJ.
    William F. Sauer et al. v. Walton Realty Co.
    Modification of Land Contracts not Subject to Statute of Frauds.
    When a contract for the sale of land has. been properly executed in writing, subsequent agreements between the 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 determine the time when the purchase money becomes due, are not affected by the statute of frauds.
    Error.
    
      George G. Iiafley, for plaintiff in error.
    
      W. B. Beebe, for defendant in error.
   HENRY, J.

The relation of the parties here is the reverse of that in the court of common pleas. The petition in error prays for a. reversal of the order of that court appointing a receiver in an action to foreclose a land contract. .The petition below alleges default in payment of installments of the purchase price stipulated in the written agreement between the parties. At the outset of the ease below, plaintiff moved for the appointment of a receiver, but before this motion was acted upon, the defendant interposed an answer, alleging among other things that the provisions of the written agreement, in regard to the times of payment and amounts of installments, had been modified by subsequent oral agreement between the parties, in accordance with which the defendants had paid or tendered all installments of the purchase price as they fell due. No reply was filed, but the court upon hearing the motion for good cause shown granted the same, and appointed a receiver.

No bill of exceptions is presented here by which the finding of fact, as to good cause shown, can be reviewed. But in the absence of a reply the fact stood admitted, that the defendants below were not in default under the modified agreement as set out in the answer. Beach, Receivers, 151. The sole question, then, for our consideration, is one of law, namely: Whether or not, under our statute of frauds, a contract in writing for the sale of land may be subsequently modified in the manner already described, by oral agreement. The answer does not allege that in consideration of the promise of the defendants below to pay monthly installments of $25 instead of $20 their obligation to make a certain stipulated payment of $200 at a time named, had been waived by the plaintiff below.

Counsel have cited many authorities, chiefly from another jurisdiction, but they seem to have overlooked the case of Negley v. Jeffers, 28 Ohio St., 90, which appears to us to be decisive of the matter in this jurisdiction. Paragraph 6 of the syllabus of that ease is as follows:

“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, bnt only determine the time when the purchase money becomes due, are not affected by the statute of frauds. ’ ’

A deed there was in escrow pending fulfillment of certain conditions, some of which were waived by parol.

Title had passed in that case, only in the sense in which it has passed here.

The new basis of payment here was acted upon so far as to estop the plaintiff to claim that the oral modification, if made, is invalid, because not to be wholly performed within one year.

It thus appears that the answer in this case presents a valid defense, and so long as it stood undenied by reply, the court below was vested with no power or discretion to appoint a receiver in aid of the foreclosure.

The judgment of the court of common pleas is reversed and the cause remanded.

Marvin, J., concurs.

Winch, J., not sitting.  