
    Brakefield v. Anderson.
    (Nashville.
    January 12, 1889.)
    Specific Performance. Parol Sales of land. Statute of frauds.
    
    A paral contract for sale of lands — being otherwise unexceptionable— will be specifically enforced by a court of equity where, in proper pleadings seeking its specific performance, the parties have fully set out and agreed.upon the terms of the contract, and neither has relied upon the statute of frauds. Refusal of specific performance, in such case, is error.
    Code cited: § 2423, subsec. 4 (M. & V.); § 1758, subsec. 4 (T. & S.).
    Cases cited and approved: Jennings v. Bishop, MS., NasbvilTe, December Term, 1883; Sneed v. Bradley, 4 Sneed, 304; Hudson v. King; 2 Iieis., 573; Winters v. Elliott, 1 Lea, 676; Hays v. Wor-sham, g Lea, 593.
    Cited and distinguished: Biggs v. Johnson, MS., Jackson, April Term, 1876; Shuder v. Newby, 85 Tenn., 348.
    Cited as showing nature of parol contracts of sale: 5 Hum., 130; 2 Sneed, 177; I Plum., 325; 5 Hum., 130; 2 Swan, 598; 2 Sneed, 175; 4 Sneed, 304; 1 Cold., 320; 2 Heis., 134, 681; 6 Heis., 455.
    EROM ERANKLIN.
    Appeal from the Chancery Court of Eranklin County. ~W. S. Bearden, Ck.
    Marks & Gregory and John Simmons for Brake-field.
    Brannon & Banks for Anderson.
   Caldwell, J.

Ill August, 1876, W. W. Brake-field bought of James Anderson thirty-seven and one-naif acres of land in Eranklin County, and went immediately into possession.

More than eight years thereafter, in November, 1884, Brakefield filed the original bill in this cause, setting out the contract, and alleging the payment of the pui’chase money and the refusal of Anderson to convey him the .land, and praying for a specific performance of the contract, if that could be granted by the Court; and, if not, that he be allowed a recovery for the purchase money paid, and also for the value of improvements by him placed upon the land.

Anderson answered the bill, admitting the contract, but denying that the whole of the piice had been paid. In his answer he further says:

“The trade was made in good faith by respondent, ana. he is able, ready, and willing to make complainant a warranty deed to said thirty-seven and one-half acres of land whenever complainant pays him the balance of the purchase money and the interest now due upon the same.”

The answer is then filed as a cross-bill, with a prayer that Andérson be allowed a decree against Brakefield for the balance of purchase money due, and that the land be sold for1» the 1 satisfaction thereof.

Brakefield answered the cross-bill, insisting, as in the original bill, that he had paid all the purchase money for the land. ,

Upon tliese pleadings and proof that the contract had never been reduced to writing, the Chancellor, on his own motion, pronounced a decree rescinding the sale, and referring the cause to the Master for an account of purchase money paid, improvements, rents, and taxes.

In due time decree was made upon the report of the Master and exceptions thereto.

Brakefield has appealed-

The decree rescinding the sale is manifestly erroneous, and will be reversed.

The learned Chancellor must have been of the opinion that the contract of sale was absolutely void for all purposes, because resting in parol, and that a Coui’t should not, therefore, in any event, assist in its enforcement.

This is a mistaken view of the law. It is true that the statute provides that no action shall be brought upon any contract for the sale of land unless the contract, or some memorandum thereof, shall be reduced to writing and signed by the vendor, or some other person by him thereunto lawfully authorized. Code (M. & V.), § 2423, Sub-sec. 4.

And it is likewise true, under the decisions of this Court, and contrary to those of the English Courts, that part performance of a parol contract for the sale of land, by delivery of possession on the one side, and payment of a portion or the whole of the purchase money on the other side, will not render the contract binding or take it out of the operation of the statute. Patton v. McClure, M, & Y., 338; 5 Hum., 130; 2 Sneed, 177; Jennings v. Bishop, MS. Opinion, Nashville, December, 1883.

But the statute is operative to defeat a verbal contract only when interposed by one of the parties. Such a contract may be enforced by the consent and upon the application of both parties. So long as' it is recognized, affirmed, and adhered to by vendor and vendee it cannot be annulled by the voluntary action of the Courts.

The sounder view is that a verbal sale of land is not void ah initio, but only voidable at the election of either party, and not enforeible by one against the will of the other who abandons or repudiates it.

The decisions of this Court have not been altogether harmonious upon this subject. In several of them such sales have been characterized as void (Pipkin v. Jamas, 1 Hum., 325; Crippen v. Bearden, 5 Hum., 130; Hurst v. Means, 2 Swan, 598; Sheid Stamps, 2 Sneed, 175), and in many others they have been held to be voidable merely. Sneed v. Bradley, 4 Sneed, 304; Hilton v. Duncan, 1 Cold., 320; Roberts v. Francis, 2 Heis., 134; Hamilton v. Gilbert, 2 Heis., 681; Masson v. Swan, 6 Heis., 455.

In some of the eases of the former class no distinction was taken, or was necessary to bo taken, between the terms void and voidable; but the distinction, suggested by the words themselves, was expressly made in' . the cases of the latter class, wherein parol sales were held to be voidable only, and not void.

The later case of Biggs v. Johnston was an action at law by the vendee, in possession, to recover from the vendor purchase money paid under an insufficient written contract for the sale of land. Johnston insisted that the action could not be maintained, because Higgs did not surrender possession of the land before commencing the suit. The majority of the Court held that an actual removal from the land by the vendee was not a prerequisite to his right of action, but that notice of his election to abandon the contract was sufficient to authorize his suit. In the discussion of that case the learned Judge who delivered the majority opinion said that the contract was “void in law, having no element of legal obligation en-forcible against either party. Biggs v. Johnston, MS. Opinion, Jackson, April, 1876.

In the case of a bill by the vendee to rescind a verbal contract for the sale of land this Court said:

“ There is no contest as to the question of the right to rescind such a contract by either party, or, rather, to treat it as void at their option, since the case of Biggs v. Johnston" Winters v. Elliott, 1 Lea, 676.

To the same effect is the language used and the decision made in the case of Hays v. Worsham, 9 Lea, 593.

But even these three cases concede, by implication, at least, that the contract is binding upon the parties until one of them elects to rescind or abandon it. Whether this be true or not, it is very certain that no one of them undertook to decide, or could properly have decided under the facts therein disclosed, that the Courts were authorized to annul such a contract when both parties were insisting upon its execution.

Later still is the case of Jennings v. Bishop, wherein this Court, speaking through Judge Cooper, said:

“A parol contract for the sale of land is not absolutely ooid, for it may be specifically executed as against either party if he fails or refuses to rely upon the statute; and if the parties themselves choose to execute the contract, third parties cannot object.” MS. Opinion, Nashville, December, 1888.

We follow this case, not only because it is the most recent utterance of this Court upon the subject treated, but also because we think it rests upon sounder reasons, and will better subserve the ends of justice than a contrary or different holding.

The case of Shuder v. Newby, 1 Pickle, 348, is not in conflict with our holding here. Whether the contract in that case was void or voidable was treated as entirely immaterial. The Court there said:

“Whether the parol agreement to purchase land be regarded as absolutely void or only voidable-cannot matter. When tlie plaintiff elected to disaf-firm tlie contract of sale it at once became void. * * * The parol agreement never could have been enforced against his consent.”

Either party may repudiate the contract whenever h ■> may choose to do so without incurring any liability for its breach; but, when one party seeks its enforcement through the Courts, the statute to be made avoidable to the other party must be by him relied upon as a defense.

“The doctrine is now well established that, upon a bill for the specific execution of such a contract, if the contract be fully set forth in the bill, and the defendant admits it in his answer, and submits to waive the statute of frauds, or, what is deemed equivalent to a waiver, does not insist upon the statute as a defense, a specific performance of the contract will be decreed.” Sneed v. Bradley, 4 Sneed, 304; 2 Heis., 573.

As we have seen, «Judge Cooper puts the same doctrine more, briefly in these words: * * * “It [the parol contract] may be specificalty executed as against either party if he fails or refuses to rely upon the statute.” Jennings v. Bishop, MS.

In the case at bar neither party relies upon the statute. On the contrary, the vendee comes with his bill and seeks the execution of the contract; and the vendor not only does not interpose the statute as a defense to the vendee’s action, but he brings his answer and cross-bill, and affirmatively asks the Court to enforce the contract in his behalf.

Both parties come with appropriate pleading and say they want their contract carried out. When this is done the reason of the statute — the prevention of fraud and perjury — ceases, and the Chancellor, instead of setting the contract aside, should decree its specific execution, the case being one in other respects (as this one is) justifying specific performance by a coui’t of equity.

The proof shows a balance of twenty-seven dollars and fifty cents of the purchase price still unpaid. To this must be added eighteen dollars and twenty cents interest, making in all forty-five dollars and seventy cents. Eor this sum Anderson is entitled to a decree under his cross-bill; and unless payment thereof should be made in ninety days from this date the land will be sold. If, however, the said sum should be paid within that time, then Anderson will be required to make Brakefield an absolute deed, with the usual covenants.

The costs of this Court and the Court below will be equally divided between them.  