PALMER v. SPENCER

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Docket Number

No. 29577.

Attorney(S)

Howie Howie, of Jackson, for appellant. An action shall not be brought whereby to charge a defendant or other party: Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year, unless, in each of said cases the promise or agreement upon which such action may be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing. Subsection C, Section 3343, Code of 1930. In general, an oral agreement to do some particular act which fixes no definite time for its performance but which, in view of the understanding of the parties and of its subject-matter, is capable of full performance within one year after the making thereof, is not within the statute. Where this is the case, it does not matter that the parties may have held the opinion that work under the contract might be extended beyond the period of one year, or that, as a matter of fact, the performance actually did cover a greater period than one year. 27 C.J. page 178, section 96; Soggins v. Heard, 31 Miss. 526; Duff v. Snider, 54 Miss. 245. There was no time fixed by this agreement for making the payment; and it is well settled that, when no time of performance is fixed, the contract will never be presumed to be in violation of the Statute of Frauds. Chaffee Sons v. Benoit, 60 Miss. 34. W.R. Newman, Jr., and Wells, Jones, Wells, Lipscomb, all of Jackson, for appellee. An action shall not be brought whereby to charge a defendant or other party . . . upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease therefor for a longer term than one year, unless in each of said cases, the promise or agreement upon which said action may be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing. Subdivision C, section 3325, Hem. Code of 1927. It is not admissible to prove an agreement by one to purchase land for another, for this would be to establish an express trust founded on contract and within the Statute of Frauds. Such an agreement is not enforceable in the courts of this state, because it is in the teeth of the Statute of Frauds. Miazza v. Yerger, 53 Miss. 135. An oral agreement to reconvey comes clearly within the Statute of Frauds and cannot be enforced. Clearman v. Cotton, 66 Miss. 467. No trust in land can be set up by a mere parol agreement nor can a trust result from the breach of such a contract. Gibson v. Foote, 40 Miss. 788; Miazza v. Yerger, 53 Miss. 135; Robinson v. LeFlore, 59 Miss. 148; Moore v. Jordan, 65 Miss. 229; Clearman v. Cotton, 66 Miss. 467. While a trust which a court of equity will enforce may spring out of the relations of the parties, no such trust can arise by parol contract between parties, and that wherever the claim is based solely on a parol agreement it must be treated as void. Robinson v. Leflore, 59 Miss. 148. Argued orally by W.B. Fontaine, for appellant and by W.R. Newman, Jr., for appellee.

Judges

McGowen, J., delivered the opinion of the court.

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PALMER v. SPENCER.

FRAUDS, STATUTE OF.

Oral agreement of grantee to make reconveyance of land conveyed held within statute of frauds and unenforceable (Code 1930, section 3343 (c).

McGowen, J., delivered the opinion of the court.

A demurrer was sustained to a bill seeking to enforce a reconveyance to Mrs. Palmer of lands purchased by Spencer at a trustee's sale, a deed therefor being executed to Spencer. Thereafter Mrs. Palmer executed a warranty deed to Spencer to the lands for a valuable consideration, and also she and her husband executed a quitclaim deed to Spencer to the same lands. No confidential or fiduciary relation is shown by the bill to have existed between Spencer and Mrs. Palmer. The agreement relied on by Mrs. Palmer for a decree rests entirely in parol for the reconveyance of the lands to her by Spencer; and an appeal is prosecuted here to settle the principles of the case.

There were several grounds of demurrer, the main ground being that the facts, as alleged, show an agreement which violates subdivision (c) of section 3343, Code 1930.

The facts alleged make the case fall clearly within the rule announced in the cases of Campbell v. Bright, 87 Miss. 443, 40 So. 3; Clearman v. Cotton, 66 Miss. 467, 6 So. 156; Miazza v. Yerger, 53 Miss. 135.

Affirmed and remanded.

PALMER v. SPENCER.

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