Wilhoit, H. R.

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University of Kentucky

Kentucky Law JournalVolume 22 | Issue 3 Article 71934The Statute of Frauds and Part Performance ofLand Contracts in KentuckyH. R. WilhoitFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Contracts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationWilhoit, H. R. (1934) "The Statute of Frauds and Part Performance of Land Contracts in Kentucky," Kentucky Law Journal: Vol. 22 :Iss. 3 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol22/iss3/7THE STATUTE OF FRAUDS AND PART PERFORMANCEOF LAND CONTRACTS IN KENTUCKY.It is a well settled rule in Kentucky that a part per-formance will not remove a contract for the sale of land fromoperation of thbe Statute of Frauds. There is, however, anequitable modification of this rule created by a long line ofjudicial decisions founded on sound principles of equity asapplied to the facts of each particular case. These decisionswere born of the principle that since the Statute of Fraudswas created to prevent fraud it must never be allowed to beused in the perpetration of a fraud. The general rule withits equitable modification is clearly set out in the case of Crainv. Crain et al.1 in which the court said:"The rule is well established in this state that a verbal contractfor the sale or transfer of land is unenforceable and invalid. Thisrule, however, is modified in cases where the grantee is placed in pos-session of the land and while there bona fidely claiming and holdingthe land as his, puts valuable permanent improvements thereon. Insuch case the grantor cannot recover the land until he places thegrantee in status quo."In the case of Usher's Exr. v. Flood2 U had reared Fand in consideration of valuable services rendered to hm byF, promised to give F a house and lot. F went into posses-sion. The court held that the parol gift did not entitle F tothe property but only to a lien thereon for the value of hisservices and improvements.It was held in Dean v. Cassidy3 that where one erectedimprovements upon !he land of another under a verbal con-tract between them, the Chancellor was correct in ordering asale of tbhe property at the instance of the party who erectedthe improvements and in dividing the proceeds in the propor-tion of the value of the lot and the improvements.The case of Bobbitt v. James4 was very much like that ofUsher v. Flood, supra. M promised B that if he would cometo her home and care for her and her property during her1 197 Ky. 813; 248 S. W. 176 (1922).2 83 Ky. 552 (1884).388 Ky. 572 (1888).'148 Ky. 244 (1912).Tml STATuTE or FRAUDS AD PART PntOF'omAc 435life she would give to him her farm. B complied with thisrequest. The court held that he was not entitled by thisverbal contract and performance to the land but could onlysubject the land to a reasonable value for his services andimprovements.Thus it is clear from these leading cases cited that Ken-tucky, while refusing to allow a part performance to take acontract out of the Statute of Frauds, does protect those whoso partly perform by requiring that they receive pecuniaryremuneration for whatever expense they incurred by acting onthe faith of the parol agreement.Although this rule is contra to the weight of authority inboth this country and in England, it doubtlessly representsthe better view of the law.That section of the Statute of Frauds relating to con-tracts for the sale of land is as follows:"No action shall be brought to charge any person . . . Sixthly,upon any contract for the sale of real estate or any lease thereof forlonger term than one year, unless the promise, contract, agreementetc., be in writing."This statute does not render an oral contract for the sale ofland void but simply declares that no action shall be broughtupon such a contract. It was passed for the purpose of pre-venting fraud by the perjuries that might creep into oral evi-dence in these cases. It demands that there be written evidenceof a contract and that only written evidence will support anaction.The courts in the majortiy of the states, in allowing partperformances to remove an oral contract from the Statute ofFrauds, seek to justify the formation of their exception tothe Statute by saying that there is another type of evidencethat is equally as good as written evidence. This is made upof acts which they claim point unequivocally to a contractfor the sale of land. They say that if A goes into possessionof B's land and builds barns, fences, etc., he has performedacts which point unequivocally to a contract to buy the landand such part performance is held to exist as to take the oralcontract out of the Statute of Frauds.This substitution is unsound. It is admitted that suchacts point to a contract but they do not point out unequivocallyKENTucKY LAw JOURNALthe terms and nature of the contract. They do not showwhether it was a lease for 5, 20 or 60 years or a contract toconvey a life estate or fee simple title. They may point toone or the other but they do not show the exact contractualrelations of the parties. In order to ascertain these under themajority rule the statutory safeguard against oral perjuriesmust be let down. Part performance is a relative thng. Actswhich might constitute part performance of a lease for 5years would not necessarily amount to part performance of acontract to convey a fee simple title. It follows in every casethat before it can be ascertained whether or not the contracthas been in part performed the questions, Did the partiesagree? and What were the terms of the agreement? must beanswered by parol evidence. This, in the face of the require-ment of the statute that these questions be answered only bywritten evidence. 5  In the case of Grant's Heirs v. (Jraigmiesothe court said:"Some judges have thought that another kind of evidence wasequivalent to written evidence, such as paying consideration, being letinto possession, making valuable improvements, etc.. . . The samefraud and perjury which can conceive and prove the agreement by parolcan also prove the performance in part; but where the law is known,the party who fails to get the land agreed for because he Is without theevidence required must take the blame on himself, for it is his ownfolly or negligence that has made him part with his money in expecta-tion of the land, or, e converso, the possession of the land in ex-pectation of the price, without the requisite evidence and In the veryteeth of the statute."Kentucky, in refusing to adopt the majority rule has clungto a sound and unassailable view of the law. The equitablemodification of the iron-clad rule of this jurisdiction is basedupon the soundest of legal principles and reasoning. Follow-ing the principle that the Statute of Frauds must not be usedas a means to accomplish an injustice, the courts have con-sistently held that the statute did not make an oral contractvoid but only said that no action could be maintained on it;that there was a good contract existing between the partiesthe only defect being that no suit could be brought upon it;that this contract would be used as a shield to prevent theperpetration of a fraud. Hence on the strength of this oral5Holtzclaw v. Blac1erby, 9 Bush 40 (1872).61 Bibb. 205 (1808).THE STATUTE oF FRAUDS An PART P ORM"CE 437contract it was sound law to require the vendor of the landto place the vendee in status quo as a condition precedent tohis recovery of the land.It is submitted that both as a matter of policy and oflegal interpretation, Kentucky's view is the more desirable.Though the majority rule may offer a convenience in a par-ticular case, at the same time it opens the door to other fraudsand injuries in that the same perjuries may be used to provethe part performance that are used to prove the oral contract.Hence the possibility of fraud is increased rather than de-creased. On the other hand, Kentucky, while clinging to thetrue letter of the law, yet applies the balm of equity to theinjuries of the oral contractor. Though he is by his own follyand negligence deprived of an expectancy, he is placed instatus quo insofar as is practically possible by pecuniarycompensation.H. R. WMHOIT.

The Statute of Frauds and Part Performance of Land Contracts in Kentucky

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The Statute of Frauds and Part Performance of Land Contracts in Kentucky

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