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v. Buck (1876) 34 Mich. 519, under the rendered by parol, the court in MaxStatute of Frauds.

well v. Wallace (1853) 45 N. C. (Bus

bee, Eq.) 251, says that, by the purb. Theory.

chase, the vendee acquired an interest According to the court in Wilkins in the land which brought it within V. Evans (1821) 1 Del. Ch. 156, to the Statute of Frauds, and it could not waive a written contract for the sale be conveyed by parol. of land would be as much a contract In holding that an oral agreement about land as to make it.

by a vendee in possession of land In Whiting v. Butler (1874) 29 Mich. under an oral contract, to give up the 122, Campbell, J., says that the Statute land, was void where nothing was done of Frauds covers every imaginable thereunder, the court in Kelley V. case where an interest is devested by Stanbery (1844) 13 Ohio, 408, says any act of a party concerned, and that that the agreement is within the Statit applies to surrenders as well as ute of Frauds and void; that no intertransfers, and excludes the idea that est in land, equitable or otherwise, there can be any waiver unless it is passes by parol only. It is further written.

stated to be true that a parol agreeThe court in Pratt v. Morrow (1870) ment executed by possession taken 45 Mo. 404, 100 Am. Dec. 381, says that will be enforced, but an equitable inthe record in that case fairly presents terest 'once acquired in land cannot the question whether a verbal agree

be parted with except by writing, or ment to rescind a contract under seal by the same means that it was acfor the sale of land, made after pay- quired. ments are due, which agreement is In Goucher v. Martin (1839) 9 founded upon no new consideration, Watts (Pa.) 106, the court states it and is not followed by any action of to be a general rule that no estate or either party in relation to the land or interest in land shall pass but by deed the writing, will be treated as valid or some instrument in writing signed in a suit by the vendor for the stipu- by the parties, and it is held immalated purchase money. In answering terial whether the interest be legal or this question in the negative, the court equitable, as an equitable interest is says that the tendency is to validate an interest in land which comes withunexecuted parol agreements to re- in the word and spirit of the Statute scind sealed contracts for the sale of of Frauds. It is accordingly held that land founded upon a new considera- the vendee cannot resell the land to tion, and thus far to abolish the dis- his vendor by parol, unaccompanied by tinctions between sealed and unsealed any act which, according to the dewritten instruments, but it is added cisions of the court, takes it out of the that the question cannot arise without operation of the statute. The court proof of consideration for the parol here emphasizes the distinction beagreement. It is further stated that tween a mere waiver or discharge of a verbal agreement merely to rescind the contract of sale and a repurchase without new consideration is not suffi- such as was involved in this case, on cient to discharge the contract; that

different terms and conditions than there should be something more. The contained in the original agreement. sale must have been actually aban- It is admitted, at least for the sake of doned by both parties, and the prop- the argument, that such a contract erty, as far as possible, restored to the might be waived, but it is said that vendor, or, at least, if the agreement that point does not arise in this case, was unexecuted, it must have been for there was no proof whatever of founded upon a new consideration and any waiver of the original bargain, clearly proved.

but the case was presented on the fact In holding that the rights acquired of a contract of sale and a repurchase by a purchaser of real estate who took of the land on different terms and conan assignment from his vendor of the ditions from the original agreement. deed to the vendor could not be sur- See Boyce v. McCulloch (1842) 3

Watts & S. (Pa.) 429, 39 Am. Dec. 35, Illinois.-See Bowman v. Cunningsupra.

ham (1875) 78 Ill. 48, supra, III. a. According to the court, a contract Iowa.--Henderson v. Beatty (1904) for the sale of land that is valid under 124 Iowa, 163, 99 N. W. 716. the Statute of Frauds cannot be sub- Kentucky.-Lucas v. Mitchell (1821) ject to a rescission by oral agreement, 3 A. K. Marsh. 244 (rule recognized). for such a rescission would be as much See Warden v. Bennett (1911) 145 Ky. obnoxious to the provisions of the 325, 140 S. W. 538, supra, II. c. statute as would a contract for the Missouri.—Tolson v. Tolson (1847) sale of land. Dial v. Crain (1853) 10 10 Mo. 736 (obiter). Tex. 444.

Mississippi. See Stone v. Buckner

(1849) 20 Miss. 73, supra, II, a. c. Facts.

Nebraska. See Sieker V. Sieker The oral rescission being invalid,

(1911) 89 Neb. 123, 130 N. W. 1033, the written contract may be enforced.

supra, II. c. Wilkins v. Evans (1821) 1 Del. Ch.

New Jersey.-Huffman v. Hummer 156.

(1866) 18 N. J. Eq. 83, 2 Mor. Min. The vendor may maintain an action

Rep. 242. See King v. Morford (1831) for interest due according to the terms

1 N. J. Eq. 274, supra, II. b. of the contract. Grunow v. Salter

North Carolina. See Holden v. (1898) 118 Mich. 148, 76 N. W. 325.

Purefoy (1891) 108 N. C. 163, 12 S. E. A vendor who has repurchased the

848, supra, III. b. land on different terms and conditions

North Dakota. See Mahon v. Leech from his vendee, who has gone into

(1902) 11 N. D. 181, 90 N. W. 807, possession, cannot maintain an action in ejectment to recover the land.

supra, II. c., and ugen v. Skjervheim

(1905) 13 N. D. 616, 102 N. W. 311. Goucher v. Martin (1839) 9 Watts

Oregon.-See Guthrie v. Thompson (Pa.) 106.

(1861) 1 Or. 353, supra, II. c. An agreement between vendor and

South Carolina. See Moseley v. vendee under which the vendee went into possession of the land, and cleared

Witt (1907) 79 S. C. 141, 60 S. E. 520, and cultivated it, cannot be rescinded

supra, II, c.

It by a parol agreement by which the

was accordingly held that a vendee surrendered the land contract

vendee who did not go into possession and agreed to become the tenant of his

of the land under his contract, and vendor. Cravener v. Bowser (1846)

who was paid back the money which 4 Pa. 259, s. c. on subsequent appeal

he had paid under it for the purpose in (1867) 56 Pa. 132.

of rescinding the same, cannot enforce A vendee who has taken an assign

the contract thereafter. Atkinson v. ment from his vendor of the deed to

Thomas (Ark.) supra. See Robertson

Ark.

v. Lain (1925) the vendor cannot, by oral agreement

269 S. W.

a.

574, supra, II. with his vendor, rescind the contract.

In Henderson Maxwell v. Wallace (1853) 45 N. C.

v. Beatty (Iowa) supra, where, upon (Busbee, Eq.) 251. It was according

the tender of the deed by the vendor,

the vendee refused to make payment, ly held in this case that a purchaser from the vendee acquired a title su

and thereupon the vendor declared in

substance that the contracts were at perior to that of a purchaser from the vendor with notice.

an end, and nothing more would be

done under them, to which the vendee V. Rule denying specific performance of responded, "All right, we are ready to

contract that has been orally quit if you are,”-and thereafter made scinded.

no effort to enforce the contract for It is held in some cases merely that nearly two years and until after the a parol agreement of rescission may land had nearly doubled in value, the be set up in equity to defeat specific court says that, even if the vendee did performance.

not regard the contract terminated by Arkansas. Atkinson v. Thomas the above conversation, he must have (1919) 138 Ark. 47, 210 S. W. 779. known that the vendor so understood

re

it, and, by the delay, he confirmed in ment for the sum remaining unpaid the vendor the notion that the contract on a contract for sale of land was held was at an end. Accordingly, the pe- not entitled to a decree for the sale of tition for specific performance was the land in satisfaction of his judgdismissed. In Tolson v. Toison (Mo.) ment, in England v. Jackson (1842) supra, one who purchased land and 3 Humph. (Tenn.) 584, where the contook possession of it, but allowed the tract had been rescinded by a verbal legal title to remain in his vendor, may agreement. According to the court, by parol waive his right to the title, the bill was in the nature of a bill for so that in an action by his heirs specific performance. It sought the against the heirs of the vendor, spe- aid of the court to affirm the contract cific execution of the contract can be of sale to the defendant, to devest him resisted by showing the waiver.

of his equitable interest therein, and The surrender of an agreement for order a sale of the land for the satisthe sale of land and the subsequent faction of the judgment for the unpaid sale of the lot to another person by purchase money; and it is held to be the vendor, with the knowledge and well settled that a parol rescission of participation of the vendee, is held to a written contract may be set up in be a rescission of the contract in opposition to a bill for specific perCrane v. De Camp (1869) 21 N. J. Eq. formance. 414, so as to prevent a specific enforce- The assignee of a contract for the ment of the contract. According to sale of land by the terms of which the the court, even where the original purchaser had the option, if he saw agreement is under seal, it may be re- fit, to leave the land, the vendor to pay scinded in equity by a parol agree- for all the work done on the land and ment evidenced only by conduct. for work and services performed to

That a written contract for the sale wards the price, was held not entitled of land may be rescinded by an oral to enforce the contract against a puragreement which may be set up in de- chaser from the vendor, in Washingfense of an action specifically to en- ton v. M'Gee (1828) 7 T. B. Mon. force the written contract is held also (Ky.) 131. It was urged that as the in Frith v. Alliance Invest. Co. (1913) dissolution of the contract was not by 6 Alberta L. R. 197, 10 D. L. R. 765, writing, but only by parol, it was not affirmed in (1914) 49 Can. S. C. 384, obligatory under the Statute of Frauds. Ann. Cas. 19140, 458.

Apparently this contention is overAt least, a specific performance of ruled. At least, the result or the dethe agreement as against a subsequent cision is to deny the contention, purchaser from the vendor may be de- although the decision itself is not feated by an oral agreement of dis- clearly based upon this ground. charge of the written contract. Boyce In Baldwin v. Salter (1840) 8 Paige v. McCulloch (1842) 3 Watts & S. (N. Y.) 473, it is stated to be doubtful, (Pa.) 429, 39 Am. Dec. 35.

at least, whether any court of equity That an equitable interest in land will allow a vendee who has volunmay be waived by parol so as to put tarily abandoned an agreement for the it out of the power of the holder to purchase of property when he found obtain the interposition of a chancel- that he could not complete it on his lor in his behalf is stated to be true part, to set up the agreement again for in Kline's Appeal (1861) 39 Pa. 463. the purpose of claiming a specific perAnd this principle is recognized in formance thereof, after the whole Garver v. McNulty (1861) 39 Pa. 473, object of the defendant in entering where it is stated that there is "no into the original agreement has been doubt but that unexecuted articles for defeated. the sale of land may be rescinded by The court in Holden V. Purefoy parol, so that in equity, no specific (1891) 108 N. C. 163, 12 S. E. 848, execution of land could be enforced or states it to have been long settled that a recovery be had in ejectment.” a parol waiver of a written contract

A vendor who has obtained a judg- within the Statute of Frauds, amount

III. a.

ing to a complete abandonment, and to repay the amount that had been clearly proved, will bar a specific per- paid by executing to the vendee his formance. Other North Carolina cases note for the payment received, and, require acts and conduct in addition instead of executing his note, he deto the oral agreement.

See supra,

livered to a third person the note of

a debtor of his, which was never paid. In May v. Getty (1905) 140 N. C. According to the court, whether or not 310, 53 S. E. 75, an action to compel the contract of rescission was executspecific performance of a contract to ed depended upon who was to be reconvey land, it is stated to be well

sponsible for the vendor's debtor's settled that parties to a written con- failure to pay his note. The court, tract may, by parol, rescind, or, by concluding that the vendor himself matter in pais, abandon the same. was responsible, and that the vendee

Some limitations have been placed had not taken it in payment, held the upon this doctrine. It is held in contract of rescission not executed, Walker v. Wheatly (1840) 2 Humph. and, therefore, not a defense. (Tenn.) 119, that an executory con- A purchaser at an execution sale tract to rescind, the condition of which under judgment against the vendee, on the part of the vendor has never who has by parol abandoned his conbeen performed, is not sufficient to de- tract for the purchase of the land, canfeat specific performance. In this not maintain ejectment against the case, the vendor delivered up an un- holders of the legal title. Raffenspaid note of the vendee, and agreed berger v. Cullison (1857) 28 Pa. 426.

W. A. E.

GEORGE MARK, Respt.,

V. LIVERPOOL & LONDON & GLOBE INSURANCE COMPANY, Limited,

Appt.,

and
NORTHERN TITLE COMPANY, Intervener, Respt

Minnesota Supreme Court - May 9, 1924.

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(- Minn. 198 N. W. 1003.) Insurance, $ 294 – forfeiture - instalment sale of property.

1. A contract for the sale of land, part of the purchase price being paid and possession taken, vests in the vendee an equitable title in fee. The legal title in fee is retained by the vendor as security, and upon payment he holds it in trust for the vendee. A policy of insurance issued to the vendor with a condition of forfeiture in the event that the property is sold without the assent of the insurer is not forfeited by his subsequently making such a contract.

[See note on this question beginning on page 316.] Evidence, § 1586 sufficiency. case of loss to it as mortgagee, and

2. The evidence justifies the finding that it agreed to do so, but did not. of the court that the intervener, a Under such finding the intervener is mortgagee, requested the defendant entitled to share in the policy. to make certain insurance policies, is- [See 14 R. C. L. 1367; 3 R. C. L. sued to the plaintiff, the mortgagor, Supp. 392; 4 R. C. L. Supp. 967.] who covenanted in the mortgage to Evidence, § 1586 — total loss. keep the property insured for the 3. The evidence sustains a finding of benefit of the mortgagee, payable in total loss.

Headnotes by DIBELL, J.

(- Minn. - ,

198 N. W. 1003.) APPEAL by defendant from a judgment of the District Court for St. Louis County (Magney, J.) in favor of plaintiff and intervener in an action brought to recover the amount alleged to be due on two fire insurance policies. Affirmed.

The facts are stated in the opinion of the court Messrs. George H. Spear and James Mfg. Co. 31 Mich. 346; Hamilton v. E. Gardner, for appellant:

Dwelling House Ins. Co. 98 Mich. 535, There was no written agreement be- 22 L.R.A. 527, 57 N. W. 735; Cosmopolitween intervener and defendant sub- tan F. Ins. Co. v. Moon, 33 Okla. 445, ject to reformation, and, in any event, 126 Pac. 756; Vancouver Nat. Bank v. the proofs did not warrant reforma- Law Union & Crown Ins. Co. 153 Fed. tion.

440. St. Anthony Falls Water-Power Co. Affirming the conclusion that ownerv. Merriman, 35 Minn. 42, 27 N. W. ship could not exist in both vendor 199; Mabb v. Merriam, 129 Cal. 663, and purchaser, and that the pur62 Pac. 212; 34 Cyc. 989; Barnum v. chaser being such owner under the White, 128 Minn. 58, 150 N. W. 227, contract, the vendor was devested of 151 N. W. 147; Chapman v. Dunwell, ownership. 115 Iowa, 533, 88 N. W. 1067; Mahoney Brickell v. Atlas Assur. Co. 10 Cal. v. Minnesota Farmers Mut. Ins. Co. App. 17, 101 Pac. 16; Brighton Beach 136 Minn. 34, 161 N. W. 217.

Racing Asso. v. Home Ins. Co. 113 The property was sold and plain. App. Div. 728, 99 N. Y. Supp. 219, tiff was no longer owner within the affirmed in 189 N. Y. 526, 82 N. E. policy provisions, even if the trans- 1124; Imperial F. Ins. Co. v. Dunham, action amounted merely to a contract 117 Pa. 460, 2 Am. St. Rep. 686, 12 Atl. to convey.

668; Lewis v. New England F. Ins. Co. Hueston v. Mississippi & R. River 24 Blatchf. 181, 29 Fed. 496; Davidson Boom Co. 76 Minn. 251, 79 N. W. 92; v. Hawkeye Ins. Co. 71 Iowa, 532, 60 Phenix Ins. Co. v. Kerr, 66 L.R.A. Am. Rep. 818, 32 N. W. 514. 569, 64 C. C. A. 251, 129 Fed. 723; The contract to convey itself conTerry v. Wheeler, 25 N. Y. 520; Dunn stituted a sale within the terms of the y. Yakish, 10 Okla. 388, 61 Pac. 926; policy. Both in common parlance and Snyder v. Murdock, 51 Mo. 175; Paine in legal significance, the property in v. Meller, 6 Ves. Jr. 349, 31 Eng. Re- question was sold. print, 1088; Hough v. City F. Ins. Co. Bradish v. Yocum, 130 Ill. 386, 23 29 Conn. 10, 76 Am. Dec. 581; Wood- N. E. 114; Ætna F. Ins. Co. v. Tyler, ward v. McCollum, 16 N. D. 42, 111 16 Wend. 385, 30 Am. Dec. 90; VanN. W. 623; Loventhal v. Home Ins. Co. couver Nat. Bank v. Law Union & 112 Ala. 108, 33 L.R.A. 258, 57 Am. Crown Ins. Co. 153 Fed. 440; Eaton v. St. Rep. 17, 20 So. 419; Arkansas Ins. Richeri, 83 Cal. 185, 23 Pac. 286; Hough Co. v. Cox, 21 Okla. 873, 20 L.R.A. v. City F. Ins. Co. 29 Conn. 10, 76 Am. (N.S.) 775, 129 Am. St. Rep. 808, 98 Dec. 581; Radebaugh v. Scanlan, 41 Pac. 553; Milwaukee Mechanics’ Ins. Ind. App. 109, 82 N. E. 544; Pettinger Co. v. Rhea, 60 C. C. A. 103, 123 Fed. v. Fast, 87 Cal. 461, 25 Pac. 680; Baker 9; Johannes v. Standard_Fire Office, v. State Ins. Co. 31 Or. 41, 65 Am. St. 70 Wis. 196, 5 Am. St. Rep. 159, 35 Rep. 807, 48 Pac. 699; Forthman v. N. W. 298; Imperial F. Ins. Co. v. Dun- Deters, 206 Ill. 159, 99 Am. St. Rep. ham, 117 Pa. 460, 2 Am. St. Rep. 686, 145, 69 N. E. 97. 12 Atl. 668; Dupreau v. Hibernia Ins. Mr. W. F. Dacey, for respondent: Co. 76 Mich. 615, 5 L.R.A. 671, 43 N. The plaintiff has not sold the propW. 585; Pennsylvania F. Ins. Co. v. erty, and was the owner thereof at Hughes, 47 C. Č. A. 459, 108 Fed. 497. the time of the fire.

The right of the purchaser to obtain Gibb v. Fire Ins. Co. 59 Minn. 267, insurance as sole owner vests in him 50 Am. St. Rep. 405, 61 N. W. 137; 14 upon the making of the contract to R. C. L. Insurance, § 292, p. 1115; convey.

Grable v. German Ins. Co. 32 Neb. 645, Dunn v. Yakish, 10 Okla. 388, 61 49 N. W. 713; Kempton v. State Ins. Pac. 926; Pom. Eq. Jur. § 146; Co. 62 Iowa, 83, 17 N. W. 194; Home Grunauer v. Westchester F. Ins. Co. Ins. Co. v. Bethel, 142 Ill. 537, 32 N. 72 N. J. L. 289, 3 L.R.A.(N.S.) 107, 62 E. 510; National F. Ins. Co. v. Three Atl. 418; 26 C. J. $$ 209, 213; Clay F. States Lumber Co. 217 Ill. 115, 108 & M. Ins. Co. v. Huron Salt & Lumber Am. St. Rep. 239, 75 N. E. 450; Brown

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