412 MILES V. SCALES. [174 MiLES SCALES.• Opinion.deliVered June 13 1927. i. FRAUDS; STATUTE OF,---CONTRACTS FOR SALE OF LA.ND. --Under the Statute _of Frauds (Crawford -& Moses' Dig. § 4862), a contract :for, the sale a lands or, any interest therein, to be valid, must tie 1 -in Writing. 2. , MONEY LENT—SUFFICIENCY OF COMFLAINT.—A complaint alleging ''Pnrchit : se 'of an inteieSt in' an oil lease on named land, that the rice vVag prorated equally betWeen plaintiff and defendant and • two : others, :that plaintiff .advariced defendant's . part 'of the pur-chaee_money, 'and that,:on a sale of; the interest, defendant was • credited with a pro rata amount , of the sale price, leaving a balance dile from him to plaintiff, held to state a cause of action for money loaned. •. LIMITATION OF ACTIONS—WHEN DEFLNSE RAISED BY DEMURRER...-. The statute of limitations cannot be taken advantage of by I - demurrer, unless the' complaint shows that the action is barred. Appeal from Union Circuit Court, Second Division. Judge- reversed. Kitchens- & ..tIorris, , for appellant. Makon i, ), , Yocuoi & Saye and Patterson & Rector., for appellee:;•-:•
ARR.] MILES;-,V..•‘.SCALES. .413 'MEHAFEV . J. • OR NoVember 24,4925; i the ,appeIlant, plaintiff below, : filed • in the, tirCuit' -Court this , complain4 alleging that, on the , 6th day -Of: NoVember,;1922; plaintiff,- tOgether : with 'E:L PS. r e, If. Al. a Johnsdn and the adef end-aht, J. I. 'Scales, pUrchased . an-, UndiVided one"-sixteentlr interest in and to all of the Oil; . 0:§ and otherr•mineralS, cOVering' 160. acres of land 'lOcated in' sectien 3,. township south, : range '16 west, UniOn . Connty, Arkansas,:the title tici Said intereSt so'aegitired . being taken : in the haine Of Pt M Johnson as trUstee that' 'the pUrChase 'Price paid fOr said ProPerty * WaS ' $11,160,-Saine being pro7rated eCivallY between said II M Jolinson, ' E L Pye and.'thiS plaintiff and defendant ;. that . on. the 6th , day of November, 1922,, the :clay , upon : 10-Acl. .1. said , purehae: . money.was paid, i was . understood and , agreed, between thiS Plaintiff anC.1. defendant , that ,the amount owing; by.. def endant as his part - of the, pnrchase price,! t 47713 rit , ..the„sum , ..c o f *4119 . 0,. . would be,aclvanced . for him AS • a, , loAA . by plaintiff in , pay-, • ment ,of his interest iu said: property . ; that, pursuant, to said .. understanding and; . agreement, plaintiff . , then and there paid said;sumnf . money for:and on behalf .of defend-I ant ; that thereafter, on the 28th day of November, .1922,; an undivided onerfourth int'erest, of the. aforesaid .one-sixteenth interest in said property so acquiredby th i s. plaim tiff . , and ; defendant 'together , with ,the said . E. • :L.- Pye and lEf..1\1. Johnson,. was sold for the -sum . of $5,000, and the part• due the„defendant therefor, to-wif, $1,250, was, by .• agreement . between. defendant and: .plaintiff; . duly credited •on the sum ..of . $2,790 ; loaned.: by plaintiff, . • to defendant in. the manner hereinabove alleged; that . there; now, remains due: this • plaintiff: the sum, of . $1,549,, and no. part thereof ha's, been : paid. Plaintiff states that on. the 20th. day of• October,. 195, and .at , numerous times : sub-, sequent thereto, has demanded,, said, sum of. $1;540 from. this defendant,. but 'he .hias , not : . repaid the,, same: Wherefere, premises considered % plaintiff prays judg-. ment . against . defendant :in •the .sum of $1,540, and. for. all, proper relief." , • ' • •
414 1\11-LEs,-v. • SCALES. [174 The •appellee; !whit) was.. defendant 'below, filed a motion to require plaintiff to make his complaint More Specific . and- certain., which•is aS follows : • •".Comes .the defendant, JL,L. Scales,: and moves the court to require plaintiff to, make..his . complaint jnore specific and certain in : this : . • • , . "First. Whether the contract of November 6, 1922, alleged as between plaintiff and , defendant for . the sale and purchase of an_interest , in land,_ was in writing; and, if , .said alleged contract be in writing, that plaintiff be re r q ed ui to amend his complaint so to state, and also tO attach to the complaint the . original or. a COPy of said e'en.- tract as exhibit thereto. • " • "Second. Whether the'alleged agreeinent of NOyeM7 her 28, 1922, as, between plaintiff and defendant, under Which it is alleged that defendant agreed with plaintiff that a payment of $1,250 be credited on the l ' shm' of $2;790 alleged to have been loaned by Plaintiff to defend= ant was in writing; and, if in writing, that plaintiff be required ito, so allege and attach a copy Of said written contract Or agreement tO his . coMplaint and make smile part thereok:' And that' the . defendant have his costs herein." • '. - • • .„ • The plaintiff : thereafter, in response to said motion; filed the followin o— . ' •I • • " • • "That' there was no Contract of sale and 'purchase between this : plaintiff and defendant of an _interest in the' land -described in plaintiff's complaint, as' stated defendant's motion. That the only contract or 'agreement , betWeen plaintiff and . defendant ' related to `defend-. ant's , part of the consideration' paid for his interest in said, land, which,. A s stated in the complaint; was loaned to defendant by plaintiff at the time said . intereSt was pUrchased, and said Agreement as to said loan being ari o'ral one. 'In further response to that part of defendant's motion -requiring plaintiff to. state as to- whether the' Credit of $1,250 on' said loan made by plaintiff tO defendant waS in phiintiff states that said agreement as to said credit was an oral one." •
-MLLES'. V. SCALES. ; 415 Defendant-then Illed'a deniurrer; whicl1is as f011oW;S: •' " C ' onies the defendant and' demlitS'to . the CoMplaint, 'and 'for I gtotirids stateSt • • • Ceniplaiiit-dOeS:not .sthte factS sufficienl .to conStitnte'a cau6 of' actien . againSt the defendant ••' ''Seeend. *• The' . 6inPlaint s . heWs . " On 'it§ 'face'.'that there Was no lending . of Money by - plaintiff, 'nor...hi:Si-1.'0W.- ing of money by deferidarit,"but; . il . there'-WaS a .Contract or' agreement of any' kind betwieen plaintiff and defendant as alleged, itwas a centract Of sale andpur chase of an interest , in land, atid . Within the . Statute of' fraudS; and fOr that reason'Void; ' " "•'•''' -'• ...'• "'Third. That the'CoMplaint . SlieWs-On itS face that,..if there 'Was snch a contraCt as alleked by plain'tiff betWeen hini' aiid defendant, plaintiff's • Canse Of' action iS barred by the three-year statute ,of hinitatiOn: • '•'. 7. - ."Wherefore defendant Prays that . Plaintiff's .com.- Plaint be disMissed ' arid that he haye his Co g ts herein." . The courf . found: that the demurrer : to , the complaint sheuld . be . sustained and .the, ,complaint dismissedi . unless plaintiff sh . ould amend.... The plaintiff refused,to,,amond or ;plead .further, , and the complaint, was dismissed, to which W ' ing, order and judgment of.the court the, plaintiff eNcepted, and prayedan appeal,to the, Supreme gourt, which was granted. it ,• • • If. this was a: suit . alleging a Verbal contract ler the sale of lands or any interest,:in. Or•concerning them,. It would be void under the statute of frauds, for such contract, to be valid, must be in writing. But we think the suit is simply an action to recover money, and, as we view it, therefore it is wholly unnecessary to discuss the statute of frauds or whether there was any resulting trust or any other questions discussed by the attorneys, for the reason that we think the complaint shows that it is simply a suit to collect money which plaintiff alleges he loaned to the defendant. If the defendant loaned any amount of money to the plaintiff and plaintiff paid the money for an interest in
416 MILES V. SCALES. [174 : the , land, and the deed was made to a trustee, or if .defendant had borrowed: the money from plaintiff and used it for this or any other purposes, plaintiff would have a right to maintain a snit . for the borrowed money. And if the money wa g actually loaned, it would make no difference whether the, lender handed the money to the borrower or . paid it for the borrower. In either event it would simply be a loan of money. It is alleged in the complaint that the property, was afterwards sold for a: less sum than the plaintiff and .others gave for ,it,, and that, by agreement, defendant's part of the amount received was applied . on the debt that he Owed plaintiff, leaving, a balance due plaintiff of $1,540. We think this states a cause of action for money loaned by plaintiff to defendant,•and that the court erred in sustaining the . demurrer. We held in a recent case that, in actions at law, the statute . of limitations cannot be taken adVantage of by demurrer unless the complaint shows that the action is barred, and, among Other things, *said : ' "As a rule, the statute of limitations cannot be taken adVantage of by . a demurrer to the complaint in an action at law, unless the Complaint shows that a sufficient time had elapsed ' to bar the action and the nen-existence of any ground of avoidance:" Brown v. Ark. Central POwer Co., ante p. 177, 294 S. W. 709. • The case •is therefore • reversed, and remanded with directions to overrule the demurrer. -
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.