In Cresswell v. McCaig, 11 Neb. 222, it is held (quoting syllabus): "The statute of frauds does not render a contract void, but voidable, at the option of either party; but it does not require a party to ignore considerations of moral obligation, equity and good faith by pleading the same, and a creditor can not do so." See, also, Wright v. Jones, 105 Ind. 17; Kemp v. National Bank, 109 Fed. 48; Minns v. Morse, 15 Ohio 569; Cahill v. Bigelow, 18 Pick. 369. This court, in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 186, said: “A parol agreement is neither illegal nor void. A plea of the statute of frauds is a plea or defense which may be waived." In Ferguson v. Bell's Admr., 17 Mo. 347, an infant executed a deed, and after coming of age, expressed satisfaction with her bargain and received part of the consideration and spoke of her intention to make a confirmatory deed, but died suddenly without doing so. The probate court held that sales by infants were not void, but voidable only; that the privilege of avoiding or disaffirming the contract or deed of an infant was one that could be exercised by his personal representative or his privies in blood, but not by his assignees or privies in estate only. The administrator of the infant refused to disaffirm the contract, and the Supreme Court sustained his action, saying: "The probate court of St. Louis County had ample jurisdiction over the whole subject-matter of the petition, and the probate court erred in refusing to order the deed to be made by the administrator upon the proof as preserved by the petitioners on this record." The general statute of limitations, when set up in actions on contracts to which it applies, is analogous to the statute of frauds. The effect of both alike in actions on contract to which they apply is to bar recovery, though the contract sued on be valid. In one of the earlier cases this court, through Judge Fairchilds, speaking of the statute of limitations, said: "It is an obligation resting upon no man to discharge an honest subsisting debt by the plea of limitations. What would be infamous by a man when alive can not be commendable or legally binding to be done for him by his representatives when he is dead." Conway v. Reyburn, 22 Ark. 290. See, also, Jacoway v. Dyer, 50 Ark. 228; Williams v. Risor, 84 Ark. 61; Rhodes v. Driver, 108 Ark. 80. Honest men are always anxious and willing to perform their contracts when they are able to do so. When death only prevents one from performing a contract, his personal representative is not compelled to set up the statute of frauds to defeat the performance of such contract. To so hold would be to convert a statute which was intended to shield from fraud into an instrument by which fraud could be perpetrated. For, if the personal representative could be compelled to set up the statute of frauds to defeat a contract which the decedent not only intended to perform, but the performance of which could have been enforced, this would be a fraud upon the rights of parties to contracts and perpetrated by the personal representative whose duty it is, as far as possible, to perform those contracts. We can never underwrite such a doctrine. (3-4) The statute under consideration contemplates that the personal representative of a decedent may, on his own motion, put the same in operation by seeking the approval and direction of the probate court concerning the subject-matter contained in the statute. It necessarily follows that it is not incumbent upon him to set up the statute of frauds. The statute of frauds has no application to proceedings under this statute, for no adversary proceedings are provided for. The personal representative only is authorized to take the initiative and make the deed, and thus perform the contract of the decedent under the statute in those cases, where the conditions exist that render the statute of frauds inapplicable. Where the personal representative of a decedent can not plead the statute, a judgment creditor can not do so, even under the broad provisions of the act of 1909, p. 956. At the time the act of 1859 became a law, oral contracts for the sale of land, as we have seen, were not void, but voidable only, and the performance of same could be enforced where the conditions essential to such performance existed, notwithstanding the statute of frauds. See Keatts v. Rector; Cahill et al., Admrs., v. Allen; Wynn v. Garland, supra. Since the Legislature must have known of these decisions, the conclusion is irresistible that if it had intended that the statute should apply only to written contracts, it would have said so in plain terms. We may assume, also, that the Legislature, while they had under consideration the passage of this act, had their attention drawn to similar legislation in other states. At that time our neighbor State of Texas had a similar law, only it specified contracts in writing. Now, with such a model before them, if they had intended to limit the operation. of the statute to written contracts, they would have followed the model and have put into the statute the words "written contracts." Instead, they have deliberately chosen to write into the act of 1859 the words "any contracts," showing unmistakably an intention not to limit the operation of the statute to written contracts only, but to make it apply to oral contracts as well. At any rate, the language "any contracts" is certainly broad enough to include oral contracts. To construe the statute as meaning only written contracts, would, in effect, change its language by writing into it the word "written" before the word "contract." Where the language of a statute is unambiguous, the intention of the Legislature must be gathered therefrom. If we change it, we thereby encroach upon the peculiar function of the sovereign power lodged in a co-ordinate branch of the Government. Although as individual judges, some of us doubt the wisdom of lodging the important power prescribed by this special statute in probate courts, whose judges are not required to be lawyers, and who may not therefore have the technical knowledge necessary to best determine such an issue, yet it nevertheless appears to a majority of us that the law is so written, hence it must be enforced as enacted. III. The appellants contend in the last place that the proof is not sufficient to sustain the findings and judgment of the court. The broad language "any contracts" is sufficient to confer jurisdiction upon probate courts over the subject-matter regardless of whether the contract has been partly performed. Whether probate courts would abuse their discretion and commit reversible error in making the order in cases where the contract had not been performed or partly performed by one of the parties to it, does not arise and need not be decided now. For here the contract was sufficiently performed by the association. (5) The facts briefly stated, are as follows: D. J. Young died February 21, 1915. He was indebted to the association in the sum of $24,154.59. The court found, and there is no evidence in appellant's abstract to the contrary, that his estate was solvent. The association, for some time prior to Young's death, had been pressing him for a settlement. On October 12, 1914, a written agreement was entered into by which Young acknowledged indebtedness to the association in the sum of $25,000, and executed notes in the aggregate for $15,000 of the indebtedness, evidenced by three notes for $5,000, payable at future dates named, with interest, and as security for the payment of these notes at the times mentioned, Young pledged stock in certain corporations shown to be of the face value of $56,700, and to have almost that actual value. Young, in several letters, had offered to settle his indebtedness to the association by a conveyance of unincumbered real estate. Young was also indebted to the First National Bank of Fort Smith, and it held a mortgage on certain of his real estate to secure that indebtedness. After considerable negotiation, evidenced by letters and as shown by personal interviews, the association accepted Young's proposition and agreed to take real estate in settlement of his debt. They agreed upon the real estate that should be conveyed, which included a part of the real estate of Young upon which the bank had a mortgage. To secure the release of this mortgage, Young and the bank entered into an agreement whereby the association was to deliver the stock which it held as collateral for Young's debt to the bank, and the bank agreed to take this stock as security for its debt, and in consideration of this stock, to release the real estate from the mortgage included therein, which Young had agreed to convey to the association. This agreement was consummated on the part of the bank, and the association in January, 1915, and was evidenced by written receipt of the bank showing that the association had delivered and it had accepted the stock in pursuance of the agreement. After the real estate to be conveyed had been definitely agreed upon, Young instructed the representative of the association to draw up the deed, which was done, and was ready to sign two or three days before Young's death. The representative of the association went to Young's residence with the deed for him to sign, but Young was then so near death's door that he was unable to sign the deed. On April 15, 1915, the probate court ordered the administrators of Young's estate to execute the deed, and thus carry out the agreement entered into between D. J. Young in his lifetime and the association. The deed was executed the 19th day of April, 1915, and was signed by Angie E. Young and J. Ross Young, administrators, and also by Angie E. Young, the widow, and the heirs of D. J. Young, in their individual rights. The mortgage of the association to the bank was introduced in evidence, showing that it had been filed for record December 14, 1914, and the release of the real estate covered by the three party agreement was endorsed on the mortgage under date of April 27, 1915. It was shown that as a part of the agreement entered into between Young and the association, the association was to pay the taxes which had accrued on the property, amounting to the sum of $1,409.19. These taxes were not paid by the association until after the probate court had ordered an execution of the deed. |