Opinion
(August Term, 1851.)
A parol agreement by C. to execute at another time a covenant to convey to D. title to a certain piece of land is void under our statute of frauds.
APPEAL from Settle, J., at CHEROKEE Spring Term, 1851.
Assumpsit upon a special promise of Vincent Ferrell to execute to the plaintiff a covenant to convey to the plaintiff in fee a certain tract of land. Upon non assumpsit, the evidence was that one Standridge purchased a tract of Cherokee lands at the public sales in 1838, and paid the grantee part of the purchase money and gave his bond for the residue and took a certificate from the commissioners. He afterwards agreed to sell a part of the tract to the plaintiff and received the price and gave the plaintiff his covenant to pay the residue of the purchase money to the State, and obtain a grant, and then to convey to the plaintiff the part of the tract so sold to him. Subsequently, Standridge entered into a treaty with Ferrell for the sale of the residue of the tract upon the terms that Ferrell should accept an assignment of the commissioner's certificate for the whole tract, and pay the residue of the purchase money to the State and obtain the grant in his (Ferrell's) name, and then convey to the plaintiff the parcel he had purchased. Upon this arrangement being communicated to the plaintiff he assented thereto, and thereupon Standridge transferred and assigned his interest in the whole tract of land, and the plaintiff gave him up his covenant, and Ferrell promised the plaintiff to give him his covenant and obligation to obtain the grant from the State and to convey to the plaintiff in fee the part of the land which the plaintiff had purchased and paid for, but he failed to do so by reason of his sudden death a (286) few days thereafter. A verdict was rendered for the plaintiff for the value of the land upon an agreement that if the court should think the plaintiff was not entitled to recover upon those facts, the verdict should be set aside and a nonsuit entered. This was subsequently done, and the plaintiff appealed.
J. Baxter for plaintiff.
J. W. Woodfin for defendant.
The plaintiff may have relief in another forum against the heirs of Ferrell upon the ground that, by the written contract with Standridge, the plaintiff had a valid equitable title to the land, and that by Ferrell's purchase, with notice of the plaintiff's title, he became his trustee, and is liable as such, notwithstanding the plaintiff had canceled Standridge's covenant upon Ferrell's promise to give his own, and his being prevented from doing so by the act of God. But as an independent verbal promise from Ferrell to the plaintiff to execute a covenant or obligation to the plaintiff to convey the land, the contract is within the statute of frauds and the plaintiff cannot maintain an action at law on it. The words are that "all contracts to sell or convey any lands, or any interest in or concerning them, shall be void unless such contract be put in writing and signed by the party to be charged therewith." The plaintiff's counsel admits that if Ferrell's promise had been to convey the land to the plaintiff, no action would he on it. But a distinction is taken that the promise is not of that kind, but is to execute a valid obligation, binding upon [him] thereafter to convey, which is supposed not to be within the statute. But the Court is clearly of the contrary opinion, for both the obligation to convey the land and the promise to give the obligation are "concerning" land and within the words of the act. Indeed it would be absurd to say that an oral promise (287) to convey land is void, but that a promise that the party will thereafter bind himself to convey the land is valid. But the same reason, although the promise to pay the debt of another be void under the tenth section of the act, a promise to give a bond for the debt would be good — which cannot be. Such a construction would be a palpable evasion of the statute and let in all the evils against which it is directed.
PER CURIAM. No error.