Sharpe v. Rogers

By the Court —

— This is an appeal from an order sustaining a demurrer to the answer of Rogers the defendant below. In setting forth his defence, the defendant relies upon an instrument in writing which he claims to be a sufficient compliance with the statute of frauds. Our statute declares that every contract, &e.,’for the sale of any lands or any interest in lands shall be void, unless the contract or some note or memorandum thereof, &e., &c., be in writing, &c., &c. Pub. Stat. 457, Sec. 8. Parsons defines a contract to be “an agreement between two or more *214parties for the doing or the not doing of some particular thing.” 1 Pars. Con., 5th Ed., 6. Whatever may be the precise obligations of Sharpe under the instrument-signed by him, they of course depend upon the instrument executed to the Monettes in which they assume to bind themselves, heirs and legal representatives in their own language, “to execute and deliver by each and every lot owner who may have title thereto from Joseph Briesson and wife, or from either of them, in any portions of lot known as lot four (4), section 29, town 111, north of range 10 west, State of Minnesota, a good and sufficient deed in fee simple with all proper covenants of warranty, whenever hereafter a patent shall be issued for said lot 4 to said Pauline Monette on reasonable demand, and the payment of fifteen dollars to meet the expenses made in the premises.” This quotation comprises all that is contained in the instrument touching the description of the property to be conveyed, or the persons to whom conveyance is to be made. And a careful reading of the instrument fails to discover any intimation as to what property was to be conveyed by the deed agreed'to be executed. Upon this point the instrument is absolutely dumb. We are left entirely in the dark as to whether the Monettes undertook to convey to each “lot owner who may have title thereto from Joseph Briesson,” the particular lot to which he had title in that way or some other lot or tract of land 'or other property. The agreement is simply to execute and deliver a good and sufficient deed without specifying what that deed is to convey. This certainly is not an agreement “to do some particular thing,” and so not a contract either within or without the statute of frauds. We have great doubt whether the instrument is not also void upon several of the other grounds urged by the counsel for the respondent, but we deem it unnecessary to go into any examination of. them. The order sustaining the demurrer is affirmed. Leave having been granted below to the defendant to apply for permission to file an amended answer, the case is remanded for further proceedings.