Mundorff v. Kilbourn

Tuck, J., delivered the opinion of this court. This is a bill in equity filed by the appellants, seeking the specific performance of a parol agreement relating to land, on the ground of performance by the complainants of their part of the alleged contract. If there were no other objections to the relief sought, we are not satisfied that the evidence in the cause supports the allegations of the bill, and that for this ⁴⁶² reason the decree should be affirmed. We need not multiply authorities to show that, in cases for specific performance, the complainant must establish the very contract set up in the bill; and that all acts of part-performance, relied upon to take the case without the operation of the statute of frauds, must be clear and definite, and refer exclusively to the alleged agreement. 2 Story’s Eq., secs. 762, 763, 764.

Wingate vs. Dail, 2 H. & J., 76 . Owings vs. Baldwin, 8 Gill, 337 . Shepherd vs. Bevin, 9 Gill, 32. The bill states in substance, that Stansbury had purchased from Mundorff a negro girl for three hundred dollars; that Mundorff proposed to give up or release to him one hundred thereof, if he would agree to devise to MundorlPs wife in fee-simple, the land mentioned in the proceedings ; that Stansbury assented to this, and paid Mundorff one hundred dollars in cash, and gave his note for one hundred, and took a receipt in full for the purchase money.

It also states that he required an instrument of writing from Stansbury, but that he did not insist upon it, after he was assured by Stansbury that he had already made his will to that effect, and would not alter it; which however he did by afterwards devising to Mrs. Mundorff a life estate only in the land. Howard did not answer the bill, but Kilbourn’s answer puts the complainant to the proof of his case. The witness relied upon to prove the agreement, who was present at the time, says that Mundorff asked three hundred 'dollars, and that Stansbury said he would give two hundred, one hundred in cash and one hundred in his promissory note, and would give Mrs. Mundorff this land in fee-simple by his will. After some conversation as to the necessity for having this reduced to writing, and the witness having assured Mundorff that Stansbury had made his will to the effect stated by him, the parties closed the matter by a receipt from Mundorff for two hundred dollars, in full for this servant girl, in which Mundorff released all his right and title, and declares himself to be fully paid, satisfied and contented.

What the difficulties were, which, as stated by the witness, the parties had met ⁴⁶³ at his house to close, we are not informed. Certain it is that it no where appears, that Stansbury agreed to pay three hundred dollars for the servant woman. If the parties were contracting for the woman at that price, it seems strange that a different sum was stated in the receipt, it is said however, that a receipt may be explained, and in this respect differs from other instruments. This is true ; but no attempt is made to explain this one.

The witness who prepared it, does not state that it was designed to be other than it is, or that it had any relation to the land, as part of the consideration in the purchase of the negro. If it had specified three hundred dollars as the purchase money, it might have been shown that the land constituted a part of that consideration. In Shepherd vs. Bevin, 9 Gill, 32 , a party was permitted to prove that a receipt for a sum of money as a distributive share, was intended to operate as a payment of so much money for land. But that cannot be done here, because the $200 is shown to have been paid in another