Byers v. Locke

Harrison, J. It is alleged in the complaint that the plaintiff, being the owner of certain real estate which had been sold under a decree of foreclosure, made an agreement with the defendant, just prior to the expiration of the time for redemption from said sale, that the defendant should advance the money necessary therefor and redeem the property from said sale, and for the pur[494]pose of enabling him to do so, he would convey the premises to the defendant, and that the defendant should hold the same until such time as they might be sold, and in the mean time advance such moneys as might be necessary for the payment of taxes and assessments thereon, and that upon the sale of said premises he would, after deducting from the proceeds therefrom the moneys so advanced, with interest thereon at the rate of twelve per cent per annum, pay the balance of said proceeds to the plaintiff; that thereupon he did, on the tenth day of July, 1888, convey the premises to the defendant, who immediately redeemed the same from the foreclosure sale, and held them until April 12, 1890, on which day, with the consent of the plaintiff, he sold them for $12,160, paying in the mean time certain amounts for taxes, street assessments, and other charges; that after deducting the amounts so paid, with interest thereon, from the amount received upon the sale, there remained $2,021.87, for which he asked judgment against the defendant. The defendant denied that any such agreement had been made, and alleged that at the time of the conveyance to him he had purchased from the party his equity of redemption in the premises for the sum of $150, which he then paid him, and that thereafter until the sale by him he had been the absolute owner thereof. The cause was tried by a jury, who rendered a verdict in favor of the plaintiff for the amount claimed by him, and from the judgment entered thereon the defendant has appealed.

The jury has determined, upon the contradictory evidence before it, that the agreement between the parties was as is alleged by the plaintiff, and its determination thereon is conclusive upon an appeal to this court.

The errors of law urged by the appellant are based upon his contention that it was not competent to prove this agreement by oral testimony, for the reason that it was an agreement relating to the sale of land. The contract or agreement upon which the action is brought is not, however, an agreement for the sale of land, or for the creation of any interest therein. The action is [495]