Williams v. Stewart

It is impossible to sustain the theory upon which the court below rendered judgment in favor of plaintiff, to wit, that the oral agreement between Mrs. Williams and Stewart amounted, in substance, merely to an *519extension of the time for redemption. Had the agreement, if executed, brought about the same result or condition of things as a redemption, though, perhaps, in a different way, the court might, to prevent a failure in the intention of the parties, treat it as one extending the time to redeem. But it would have brought about a very different result. A redemption would simply annul the sale, leaving the property in the same condition as if the mortgage had never been made. The agreement, if executed, would affirm' the sale and make it, with the mortgage, the means of passing the title from the original owner to Mrs. Williams. Can the contract be enforced as an agreement to convey real estate? Mrs. Williams, being one of the mortgagors, and having in the property an interest which the law recognizes, and will protect, had a right to redeem from the foreclosure sale. This was a valuable right, and if, as the court below has found, she refrained from exercising this right, because of and relying upon the agreement to convey, until the right expired, we think it was a sufficient part-performance to take the agreement out of the operation of the statute of frauds. Ryan v. Dox, 3 N. Y. 307.

The agreement is deficient, however, in a very important particular. Courts will not specifically enforce oral contracts to convey real estate, the material terms of which do not clearly appear — will not make contracts for the parties. The agreement here was for the conveyance of the land at the price of $1,153.50, with interest at the rate of twelve per cent, per annum from August 26, 1871, five hundred dollars to be paid within one year, upon which the conveyance was to be made, and a mortgage to be given for the remainder of the purchase-money. The parties agreed that credit should be given for the remainder, but the terms of such credit, whether it was to be for one, five or ten years, do not appear. That was evidently left for future negotiation. The court cannot supply the omission. McClintock v. Laing, 22 *520Mich. 212; Nichols v. Williams, 22 N. J. Eq. 63; Schmeling v. Kriesel, 4 N W. Rep. 116.*

The judgment cannot be sustained, and it is accordingly reversed.