Miller v. Burt

82 N.E. 39, 196 Mass. 395, 1907 Mass. LEXIS 1114

• Court: Massachusetts Supreme Judicial Court
• Decided: October 16, 1907
• Status: Published

Opinion

Sheldon, J.

The demurrer rightly was sustained; and, as the plaintiff apparently did not desire to make any amendment, the bill properly was dismissed.

I. It is abundantly settled by the decisions of this court that the memorandum signed by the defendant was not sufficient to take the case out of the statute of frauds. It utterly failed to describe or identify in any manner, or by any reference, the land intended to be conveyed. Whelan v. Sullivan, 102 Mass. 204. There was no such fraud or part performance averred as would entitle the plaintiff to avoid the statutory bar. Glass v. Hulbert, 102 Mass. 24. Harrell v. Sonnabend, 191 Mass. 310. Nor was there any averment that the land which was 'the subject of the bargain was the only land owned by the defendant, so as to bring the case within the rule stated in Doherty v. Hill, 144 Mass. 465, 467. See the cases there cited.

2. It sufficiently appears by the bill that the agreement between the parties was an oral one, and that no written memorandum except the one annexed to the bill was relied on by the plaintiff. This affords ground for demurrer in equity. Campbell v. Brown, 129 Mass. 23. Ahrend v. Odiorne, 118 Mass. 261. It may be that if there had been no demurrer and if the statute of frauds had been set up in avoidance of the action (see Harrell v. Sonnabend, 191 Mass. 310; Livingston v. Murphy, 187 Mass. 315, 318), the plaintiff might have put in oral evidence to show that the defendant owned no other land than that bargained for; but no such case is now before us.

The decree sustaining the demurrer and dismissing the bill must be affirmed.

So ordered.