If, after an oral agreement for the sale of land, the purchaser
executes a deed, describing the land by metes and bounds but
insufficiently acknowledged to pass title, and sends that deed to
the vendor in a letter stating the terms of payment in cash and
notes, and requesting payment accordingly, and the purchaser
replies by letter, containing a draft of a similar deed with a
sufficient acknowledgment, requesting that it be executed instead
of the other, and promising, on receipt of it, to "forward money,
notes and old deed," the two letters, and the deed enclosed in the
first letter, together constitute a sufficient memorandum in
writing to take the contract out of the statute of frauds.
The case is stated in the opinion.
Page 139 U. S. 211
MR. JUSTICE GRAY delivered the opinion of the Court.
This was an action of assumpsit by D. B. Wiggins and Jane M.
Wiggins, his wife, citizens of New York, against S. G. Bayne, J. M.
Fuller, and T. J. Melvin, citizens of Pennsylvania.
The declaration alleged that on November 21, 1883, Mrs. Wiggins
sold, and the defendants agreed to buy, a tract of land owned by
her and situated in Lafayette Township and McKean County in the
State of Pennsylvania for the price of $10,000, payable one-half on
delivery of the deed, one-fourth in three months, and the other
fourth in six months, with interest, and that on November 28, 1883,
she delivered to them a good and sufficient deed of the land, and
possession of the same.
The evidence introduced by the plaintiffs at the trial was to
the following effect:
Wiggins and wife resided near Buffalo, New York, and she was
seised of the land in question under a recorded deed.
On November 21, 1883 at Bradford, in Pennsylvania, and in the
office of the First National Bank of Bradford, of which Bayne was
president and Fuller vice-president, Wiggins made an oral agreement
with Bayne and Fuller to sell the land for the price of $10,000,
half in cash, of which the sum of $250 was at once paid to him, and
the other half in notes, payable in three and six months, with
interest, and the following memorandum of their agreement was drawn
up by Bayne, signed by his direction by the cashier of the bank and
delivered to Wiggins:
"Bradford, Pa. November 21, 1883. Received $4,750 from Bayne,
Fuller, and Melvin, which is the cash payment on a lot of 70 acres
of land sold to them by D. B. Wiggins for $10,000, the balance to
be paid in notes and money as agreed on by both parties. I am to
remit this money and the notes spoken of to said D. B. Wiggins on
his forwarding a good deed of said land. The notes are to be $2,500
at three months
Page 139 U. S. 212
and $2,500 at six months, both with interest. W. W. Bell,
Cashier."
Melvin was not present at that time, but afterwards admitted, in
conversation with Wiggins and another person, that Bayne, Fuller,
and himself were the purchasers, and Bell acted as their agent, and
one Hayes at Buffalo as the plaintiff's agent throughout the
subsequent transactions.
On November 23, Wiggins and wife executed at Buffalo a deed to
Bayne, Fuller, and Melvin, dated November 22, of the land,
describing it fully by metes and bounds, and expressed to be in
consideration of the payment of $10,000, and acknowledged it before
a notary public, but that deed was insufficient under the law of
Pennsylvania to pass the title, because the notary's certificate
did not state that he had made known its contents to the wife.
Penn.Stat. February 24, 1770, §§ 2, 3; 1 Dall.Laws 536, 537; 1
Purdon's Digest (11th ed.) 568, 569;
Watson v. Mercer, 6
Sergeant & Rawle 49;
Hornbeck v. Mutual Building & Loan
Association, 88 Penn.St. 64;
Enterprise Transit Company v.
Sheedy, 103 Penn.St. 492.
On the same day Hayes sent that deed to Bell in a letter,
saying:
"I enclose for collection and remittance deed of J. M. and D. B.
Wiggins, for which please remit us your draft on New York, $4,750,
and two notes given by Bayne, Fuller, and Melvin, $2,500 each at 3
and 6 months, with interest, to order D. B. Wiggins."
On Saturday, November 24, Bell replied to Hayes: "Yours of 23d
inst. is at hand. The search is taking longer than expected, but
will probably be completed by Monday." On Tuesday, November 27,
Bell wrote to Hayes, enclosing an unsigned deed, substantially
similar to the first one, except that the certificate of
acknowledgment was according to the law of Pennsylvania, and saying
in his letter:
"I enclose a deed that Bayne, Fuller, and Melvin's attorney
wishes executed in place of the one sent by you, on receipt of
which I will forward money, notes, and old deed. This is a
Pennsylvania form, and the other is a New York one."
On November 28, Wiggins and wife signed this deed, and
Page 139 U. S. 213
he sent it through Hayes to Bell, and it came back on November
29, together with the first deed, and a letter from Bell to Hayes,
which was given in evidence, dated November 29, in which Bell
said:
"By request of Bayne, Fuller, and Melvin, I return deed of D. B.
Wiggins to you. Their attorney has written Mr. Wiggins, giving the
reasons for so doing."
There was also given in evidence a letter dated November 27, and
postmarked "Bradford, November 29," to Wiggins, from the
defendants' attorney, saying:
"Bayne, Fuller, and Melvin decline absolutely to purchase the 80
acres of land in Lafayette, this county, and ask you to at once
refund the money paid and return receipt given. They have been put
in possession of the facts in detail as to the means used by
yourself in collusion with others to try and induce them to make
the purchase. In addition to this, the title to the land is not
good, and they decline to accept the deed offered, and have
directed the same to be returned. Prompt action on your part is
demanded. If you do not at once return the money and receipt, I
have advised them to promptly take such action as the facts now in
their possession certainly justify."
On November 30, Wiggins went to Bradford, saw Bayne and Fuller,
tendered them the second deed, and demanded the money and notes, in
accordance with the original contract, and they refused to give
them or to accept the deed. The defendants relied on the provisions
of the statute of frauds of Pennsylvania, copied in the margin,
* and
requested
Page 139 U. S. 214
the court to instruct the jury that
"the contract for the sale of the premises described in the
plaintiffs' declaration being in parol, and there being no evidence
that any possession thereof was taken by the defendants under and
pursuant to the contract, there can be no recovery of the purchase
price by the vendor unless the contract was fully executed by the
delivery of a good and indefeasible deed for the land accepted by
the vendees."
The court instructed the jury accordingly, but with this
qualification: that if the first deed -- the one of November 22,
1883 -- was accepted by the defendants, and at their request the
plaintiffs executed, and on November 28, 1883, transmitted to Bell
a second deed, and on November 30, 1883, such second deed was
tendered by the plaintiffs to two of the defendants, namely, Bayne
and Fuller, this was a sufficient execution of the contract,
notwithstanding the first deed was defective. The jury returned a
verdict for the plaintiffs in the sum of $11,300, upon which
judgment was rendered, and the defendants, having duly excepted to
the instructions, sued out this writ of error.
It may be admitted that the original memorandum of November 21,
signed by Bell in the presence and by the authority or assent of
both parties, which stated a sale by Wiggins to the defendants of
"a lot of seventy acres of land," and specified the terms of
payment in cash and notes, was not of itself a sufficient
memorandum to satisfy the statute of frauds, because it in no way
described or gave any means of identifying the land sold. The deed
to the defendants, executed by the plaintiffs on November 23 was
not acknowledged so as to take effect as a conveyance, nor accepted
as such by the defendants, but it contained a full description of
the land by metes and bounds, and it was sent to the defendants'
agent by the plaintiffs'
Page 139 U. S. 215
agent in a letter demanding payment of part of the price in
money, and of the rest in notes, in the terms of the original
memorandum. The defendants' agent replied on the next day that he
had received that letter, and three days later, in further
response, wrote another letter enclosing a form of deed
substantially like the first one, but with a sufficient certificate
of acknowledgment, requesting that this deed might be executed
instead of the other, and promising, on receipt of it, to "forward
money, notes, and old deed."
This letter of the defendants' agent, read in connection with
the other writings which had passed between the parties,
unequivocally refers to the first deed, which fully described the
land sold, and to the money and notes to be given in payment
therefor, as specified in the letter which enclosed that deed. In
the light of the undisputed facts, its language could apply to
nothing else. It thus, by necessary reference, embodies a definite
statement of the contract actually made by the parties, both as to
the property to be conveyed and as to the terms of payment, and,
taken together with that deed and that letter, constitutes a
sufficient memorandum, signed by both parties or their agents, to
take the case out of the statute of frauds.
Beck with v.
Talbot, 95 U. S. 289;
Ridgway v. Wharton, 6 H.L.Cas. 238;
McFarson's
Appeal, 11 Penn.St. 503, 510;
Tripp v. Bishop, 56
Penn.St. 424.
For this reason, the defendants cannot have been prejudiced by
the instructions given to the jury, and it becomes unnecessary to
consider whether, under the statute of frauds of Pennsylvania, as
expounded by the Supreme Court of that state, the memorandum of a
contract for the sale of land need by signed by the buyer, as well
as by the seller, in order to maintain such an action as this.
See Browne, St. Frauds (4th ed.) § 226 and cases there
cited.
Judgment affirmed.
* By the statute of Pennsylvania of March 21, 1772,
"All leases, estates, interests of freehold or term of years, or
any uncertain interest of, in, or out of any messuages, manors,
lands, tenements, or hereditaments, made or created by livery and
seisin only, or by parol, and not put it writing and signed by the
parties so making or creating the same, or their agents thereunto
lawfully authorized by writing, shall have the force and effect of
leases or estates at will only, and shall not, either in law or
equity, be deemed or taken to have any other or greater force or
effect, any consideration for making any such parol leases or
estates, or any former law or usage to the contrary
notwithstanding, except, nevertheless, all leases not exceeding the
term of three years from the making thereof. And moreover, no
leases, estates, or interests, either of freehold or terms of
years, or any uncertain interest of, in, to, or out of any
messuages, manors, lands, tenements, or hereditaments shall at any
time be assigned, granted, or surrendered unless it be by deed or
note in writing, signed by the party so assigning, granting, or
surrendering the same, or their agents thereto lawfully authorized
by writing, or by act and operation of law."
1 Dall.Laws 640; 1 Purdon's Digest (11th ed.) 830, 831.