(DOWNLOAD) "Eccles v. Kendrick" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Eccles v. Kendrick
- Author : Supreme Court of Montana
- Release Date : January 18, 1927
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
Cancellation of Instruments ? Promissory Notes ? Land Contract ? Statute of Frauds ? Part Performance ? Consideration. Cancellation of Instrument ? Oral Transfer of Land ? Statute of Frauds. 1. In an action for the cancellation of a promissory note and chattel mortgage securing it, alleged by plaintiff vendor to have been given by him to his vendee as security if plaintiff should be unable to perfect his title to a portion of the land sold (which title had been obtained, deed being tendered), and claimed by defendant vendee to have been given under an oral agreement to take back the land sold, the amount of the note representing payments made by defendant on the purchase price, held, that such oral agreement was in effect one for the retransfer of real property and therefore void under the statute of frauds, which requires such an agreement to be in writing subscribed by the party to be charged, the plaintiff. - Page 121 Statute of Frauds ? Note or Memorandum ? Insufficiency. 2. A promissory note (or mortgage) said to have been given in connection with the oral transfer of real property, which contains no reference to the terms of the contract, is not a sufficient memorandum to take the contract out of the operation of the statute of frauds, within the meaning of section 7519, Revised Codes 1921, declaring such a contract invalid unless a note or memorandum thereof be in writing and subscribed by the party to be charged. Same ? What Insufficient to Take Contract Out of Statute. 3. The oral contract above, having been void under the statute of frauds and binding upon neither party, tender by defendant of a quitclaim deed to the property sold to defendant but asserted to have been taken back by plaintiff under the contract, which tender was made two years after making of the alleged contract, held, insufficient to take the case out of the statute. Same ? Part Performance ? What may Constitute. 4. Part performance of an oral agreement, otherwise void under the statute of frauds, which will avoid the statute, may consist of an act which puts the party performing it in such a situation that the nonperformance of the agreement would be a fraud upon him. Same ? Part Performance ? Insufficient Showing. 5. Where plaintiff in an action for the cancellation of a promissory note claimed by defendant to have been given in consideration of an oral contract to convey real property, never entered into possession, and defendant neither pleaded nor proved that by plaintiffs alleged part performance of the contract consisting of having the property assessed in his name and paying the taxes thereon for several years, he (defendant) had been placed in such a situation that nonperformance would be a fraud upon him, the acts of plaintiff did not constitute such part performance as will take the contract out of the statute of frauds. (See par. 4 above.) Same ? Invalid Contract ? Promissory Notes ? Consideration Invalid in Part ? Payment Enforceable as to Valid Portion. 6. A note given in aid of a contract which is invalid under the statute of frauds is without consideration and payment thereof cannot be enforced; but where only a portion of a note is given in payment of such a void contract, the remaining portion being based upon a valid consideration, payment may be enforced as to such latter portion. - Page 122
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