       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                  FILED
                                                    April 29, 1998
MELVIN VAUGHN and wife         )
MAJORIE VAUGHN,                )                 Cecil W. Crowson
                               )                Appellate Court Clerk
      Plaintiffs/Appellees,    )   Rutherford Circuit
                               )   No. 36038
VS.                            )
                               )   Appeal No.
STEPHEN R. KING and wife       )   01A01-9707-CV-00330
SHIRLEY A. KING,               )
                               )
      Defendants/Appellants.   )




                   APPEAL FROM THE CIRCUIT COURT
                      FOR RUTHERFORD COUNTY
                    AT MURFREESBORO, TENNESSEE

            THE HONORABLE ROBERT E. CORLEW, JUDGE




For Plaintiffs/Appellees:                For Defendants/Appellants:

Frank M. Fly                             Phillip M. George
N. Andy Myrick, Jr.                      Smyrna, Tennessee
Murfreesboro, Tennessee




                    AFFIRMED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                                       OPINION

       This appeal involves a dispute concerning the payment of the consideration for the
conveyance of residential property in Smyrna. After the purchasers ceased making the
agreed upon pa yments, th e sellers filed su it in the Circuit C ourt for Ru therford C ounty
seeking to recover the unpaid balance of the purchase price. Th e purchas ers attemp ted to
avoid liability by asserting that the statute of frauds barred the sellers’ claim. The trial court
denied the purchasers’ motion for summary judgment, and a jury awarded the sellers a
$42,864 judgme nt. We have determined that the trial court correctly determined that the
statute o f frauds did not bar the s ellers’ ac tion and , therefo re, affirm the judg ment.


                                                 I.


       Melvin and Majorie Vaughn and Stephen and Shirley King live in Rutherford County.
On August 31, 1994, the Kings agreed to purchase the Vaughns’ home at 6155 Lee Avenue
in Smy rna for $ 50,000 . On that same day, the Vaughns executed a warranty deed conveying
the property to the Kings, and the Kings claim that they paid the Vaughns the full $50,000
purchase price in cash. The Vaughns, on the other hand, assert that the Kings pa id them o nly
$5,000 and that the Kings promised to pay them $3 56 per m onth until the purchase price was
fully paid. The Kings did not give the Vaughns a promissory note, and the Vaughns did not
take a deed of trust on the conveyed property.


        According to the Vaughns, the Kings made their payments for six months and then
stopped paying . On Ja nuary 8 , 1996, the Vaughns sued the Kings in R utherford C ounty
Circuit Court for the balance of the purchase price. The Kings filed an answer admitting that
they bought the Lee Avenue property; however, they denied the existence of any written
memorandum of their agreement other than the deed and raised the statute of frauds as an
affirmative defense. The Kings later moved for summary judgment asserting their statute of
frauds defense b ecause the Vaugh ns could n ot produc e a written in strument e videncing their
obligation to pay for the property in installment payments. The trial court considered and
denied the motion. Thereafter, the parties tried this case to a jury, and the jury found that the
Kings owed the Vaughns the unpaid balance of the purchase price. On June 25, 1997, the
court entered judgment on the jury verdict for the Vaughns in the amount of $42,864. The
Kings have appealed.




                                                 II.



                                                -2-
       The only issue on appeal is wheth er the Vaughns’ lawsuit to recover the balance
alleged due for the sale of the property is legally barred by Tenn. Code Ann. § 29-2-
101(a)(4), (5) (Supp. 1997). 1 Because the underlying transaction in this case involved the
sale of real estate and the alleged monthly payments were to stretch beyond one year, the
Kings maintain that they cannot be held liable because the Vaughns never produced a deed
of trust, a prom issory note, or any other writing signed by the Kings. In the appellants’
words, “Without a written agreement, there is simply no contract upon which the Kings can
be held liable.”


       The statute o f frauds is intend ed to red uce co ntracts to a certain ty, Baliles v. Cities
Serv. Co., 578 S.W.2d 621, 623 (Tenn. 1979), and to prevent non-existent contracts from
being set up against innoce nt partie s by pe rjured te stimon y. Yates v. Skaggs, 187 Tenn. 149,
152, 213 S.W.2d 41, 43 (1948). In the context of land contracts, the statute of frauds is
intended to protect real estate owners and to prom ote the s ettling o f titles. Irwin v. Dawson,
197 Tenn. 314, 317, 273 S.W.2d 6, 7 (1954). Consistent with that intention, “the party to be
charged therew ith” ord inarily re fers to th e prope rty ow ner. Crum v. Lawing, No. 03A01-
9610-CH-00320, 1997 WL 243506, at *1 (Tenn. Ct. App. May 13, 1997) (No Tenn. R. App.
P. 11 perm . app. filed); Patterson v. Davis, 28 Tenn. App. 571, 577, 192 S.W.2d 227, 229
(1945). Thus, with regard to the sale of real esta te, a deed executed by the seller showing the
fact of a sale, the consideration for the sale, and giving a description of the land will satisfy
the statute o f frauds . Southern States Dev. Co., Inc. v. Robinson, 494 S.W.2d 777, 782
(Tenn. Ct. App. 1972). Once the statute of frauds has been thus satisfied, performance or
non-performance of the ag reeme nt term s may be sho wn by oral testim ony. Kirk v. Williams,
24 F. 437, 446 (W.D. Tenn. 1885) (ap plying Te nnessee law ); Southern States Dev. Co., Inc.
v. Robinson, 494 S.W.2d at 782.2


       No one in this case disputes that the Va ughns ag reed to sell the Smy rna prope rty to
the Kings for $50,00 0. The executed w arranty deed gives a description of the land and
shows that the Va ughns pe rformed their part of the agreement by conveying the property at
the agreed price. Thus, the only dispute in this case was not whether any agreement existed
to sell the real estate but rather whether the Kings defaulted in their performance under that
agreement. The statute of frauds provides no defense to that dispute.



       1
       The Kings have not appealed the jury verdict and are not arguing that the evidence
preponderates against that verdict.
       2
         We note also that in land contracts, once the grantor conveys the real estate, the buyer’s
return promise to pay for it becomes enforceable without reference to the statute of frauds; in that
case the statute provides no defense to the buyer’s failure to pay. Restatement (Second) of Contracts
§ 125(3), cmt. e, illus. 11 (1981).

                                                -3-
         Summ ary judgment shou ld only be granted w here the moving party demonstrates that
on the undisputed facts he or she is entitled to a judgment as a matter of law. Tenn. R. Civ.
P. 56.04; Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 19 93); Mansfield
v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn. Ct. App. 1993). Because in this case
the statute of frauds did not bar the Vaughns’ action to recover the balance of the purchase
price, the Kings failed to show that they were entitled to judgment purely as a matter of law.
We accordingly find that the trial court correctly denied the Kings’ summary judgment
motion.


                                             III.


         We affirm the judgment and remand the case to the trial court for whatever further
proceedings may be required. We also tax the costs o f this appeal, jointly and seve rally, to
Stephen R. King and Shirley A . King and their surety for which execution, if necessary, may
issue.
.
                                                    ______________________________
                                                    WILLIAM C. KOCH, JR., JUDGE

CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
BEN H. CANTRELL, JUDGE
