Knox v. King

36 Ala. 367

• Court: Supreme Court of Alabama
• Decided: June 15, 1860
• Status: Published

Opinion

STONE, J.

Under the English statute of frauds, it has been frequently held, that a contract for the sale of lands may be taken out of the operation of the statute, by an acknowledgment of its terms in writing, though subsequently made; and it does not vary the case, if the terms are to be gathered from two or more papers, provided the terms, of the contract are expressed in the writing. But, when the memorandum in writing is itself incomplete, it can not derive aid from another writing, unless the memorandum refer to the other' writing. ' Oral evidence can not be received to connect the two, or to supply the wanting link; ior this would let in all the mischiefs which the statute of frauds and perjuries .was intended to prevent. — 2 Kent’s Com. 511, in margin; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 280; 2 Story on Cont. § 784, and note 6; 3 Phil. Ev. (by Edwards,) 350, 351; Dobell v. Hutchinson, 3 Ad. & El. 355, 371-2; Addison on Cont. 42; Shippey v. Denison, 5 Esp. 190.

Under our general statute of frauds, (Code, § 1551,) contracts for the sale of lands, &e,, unless the purchase-money or a portion thereof be paid, and the purchaser be put in possession by the seller, are void; unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or by some other person thereunto lawfully authorized in writing.

In the present case, there is no pretense .that the contract is binding under section 1551-of the Code. It is urged, however, that the plaintiff has brought himself withinthe exceptional section. 1552 of the Code, which provides, that when lands, &c., are sold at public auction, and the auctioneer, his clerk, or agent, makes a memorandum of the property and price thereof at which it was sold or leased, the terms of sale, the name of the purchaser or lessee, and the name of the person on whose account the sale or lease is made, such memorandum is a note of the contract, within the meaning of the preceding section. ' The .memorandum in this case makes no mention of the name of the person on whose account the sale was made. An attempt was made in the court below to supply this defect, by proof that a map was exhibited, both before and during the sale, which contained the name of the person on whose account the sale was made. This map can not be in any way connected with the memorandum, wdthout resort to oral proof, which would let in all the mischiefs against which the ,statute of frauds and perjuries was intended to provide. The memorandum was insufficient. — Adams v. McMillan, 7 Porter, 73; Robinson v. Garth, 6 Ala. 204; Hutton v. Williams, 35 ib. 503.

The deed and mortgage, drawn up at the instance of Mr. Knox, and by his attorney, can not aid the plaintiff’s case. They were not signed by Mr. Knox, nor by any person thereunto authorized in writing. Neither can the amendment of the memorandum, made pending the trial, perfect the'plaintiff’s right of action.

Reversed and remanded.