E. H. Bristone, for appellant.
The instrument is not a mere promise to convey, and, therefore, executory, but it is a deed already executed. True, there
is no acknowledgment, but this is not a suit to compel acknowledgment of the deed. The instrument being already executed, there can, of course, be no specific performance, nor can there be any recovery of damages, because the measure of damages is the purchase money and interest, and here there is none. Brooks v. Black , 68 Miss., 161 .
Granting the instrument to be executory, the contract is without consideration, and a mere madum pactum . The consideration for the promise of Mrs. Sartor is the promise of Haughton to deliver cotton in 1891, 1892, 1893, 1894. It is a promise not to be performed in one year, not being signed by Haughton, and is void. We do not object to the validity of unilaterial contracts for sale of land signed by the party charged. Such a contract, signed by the vendor, may be enforced, though not signed by the vendee. This is not a question of both vendor and vendee signing a contract for sale of land, but one of consideration or want of consideration. It is only where the consideration is good that specific performance can be had. In Marqueze v. Caldwell , 48 Miss., 23 , there was no question of consideration involved. The absence of Haughton's signature to the promise does not affect the mutuality of the trade, but, not being one to be performed in a year, it does affect the consideration. If one installment of the purchase price is not to be paid in a year, the whole consideration comes within the statute of frauds. Browne on Stat. of Frauds, § 285.
Where the consideration of one promise is another promise void under the statute of frauds, the first promise is also void. Browne on Stat. of Frauds, §§ 116, 117. See, also, 13 Vt., 21 ; S Johnson, 195; 11 Mass., 341 ; 5 Ib. , 133; 6 Metc., 319; 5 Cowen, 162.
All that Mrs. Sartor got for her land was a promise void under the statute of frauds. Nelson v. Lawson , 71 Miss., 819 . Catlett v. Bacon , 33 Miss., 269 , is exactly in point. Metcalf v. Brandon , 58 Miss., 841 , is no authority for the contention
that the bill of complaint filed in 1894 is a sufficient promise in writing to deliver cotton in the years 1891, 1892, 1893, 1894. The time of the performance of this contract is long since past, and it is not in complainant's power to perform according to its terms.
George C. Paine , on same side.
1. It is apparent from the agreement that it was not to be performed within a year, and, as appellee did not sign any obligation, he is not bound. 2. There is no consideration for the alleged contract, appellee's agreement to pay being void under the statute of frauds. Appellant could not enforce her right against appellee, as she had no valid demand existing in her favor against him. 55 Miss., 77 ; 58 Ib. , 820; 59 Ib. , 45; 71 Ib. , 820.
R. E. Houston , on the same side.
E. O. Sykes and W. H. Clifton , for appellee.
The contract is signed by Mrs. Sartor, the party sought to be charged. The contract, though unilateral, is yet enforcible. Complainant offers to perform, and thus the mutuality of the contract is established, and all trouble is met and overcome. This question has been adjudicated often by this court. Marqueze v. Caldwell , 48 Miss., 23 ; Williams v. Tucker , 47 Ib. , 678; Welborn v. Bishop , 62 Ib. , 341. See, also, 35 N. E. Rep., 392; 54 N. W. Rep., 834; 18 At. Rep., 834; Ib. , 979.