ALLEN D. CURTIS,                )
                                )
      Plaintiff/Appellant,      )       Appeal No.
                                )       01-A-01-9605-CH-00211
and                             )
                                )
CAROLYN JUNE CURTIS,            )       Sumner Chancery
                                )       No. 94C-324
      Intervening Plaintiff/    )
      Appellant,                )
                                )
v.                              )
                                )                    FILED
WILLIAM M. RICE, and            )
RICE & PAPUCHIS CONSTRUCTION    )                    December 4, 1996
COMPANY, INC.,                  )
                                )                    Cecil W. Crowson
      Defendants/Appellees.     )
                                                    Appellate Court Clerk


                COURT OF APPEALS OF TENNESSEE

                   MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

                     AT NASHVILLE, TENNESSEE


           THE HONORABLE TOM E. GRAY, CHANCELLOR




JERRY C. SHELTON
Lyell, Seaman & Shelton
611 Commerce Street, Suite 2704
Nashville, Tennessee 37203
     ATTORNEY FOR PLAINTIFF/APPELLANT

CLINTON L. KELLY
Kelly and Kelly
629 East Main Street
Hendersonville, Tennessee 37075
     ATTORNEY FOR INTERVENING PLAINTIFF/APPELLANT
JAMES C. BRADSHAW, III
Wyatt, Tarrant & Combs
313 East Main Street, Suite 1
Hendersonville, Tennessee 37075
     ATTORNEY FOR DEFENDANTS/APPELLEES



                                        REVERSED AND REMANDED




                                                                       SAMUEL L. LEWIS, JUDGE

                                            O     P I N I O N


             This is an appeal by plaintiffs/appellants, Allen D. Curtis

and his wife, Carolyn June Curtis, from a decision of the chancery

court which dissolved the partnership formed between Curtis and

defendant/appellee, William M. Rice, and which distributed the

partnership's assets.1                     The facts out of which this matter arose

are as follows.



             In 1976, Mr. and Mrs. Curtis acquired a tract of land as

tenants by the entirety.                        They later subdivided a portion of the

land into 21 lots ("The Hollows") and recorded a plat.                                                According

to the plat, a 10 foot strip of land ran along the western boundary

of The Hollows' access road and into lot 21 of The Hollows.                                                To the

west of the 10 foot strip and lots 15-21 was another parcel of land

known as the Yearwood Property.



             The Hollows' access road was constructed by Rice & Papuchis

Construction Company, Inc., William M. Rice, President.                                                  At some

point, Rice moved some top soil for Curtis.                                        As compensation for

Rice's services, Rice claimed that Curtis initially conveyed lot 21



         1
            For the purposes of this opinion plaintiff/appellant, Allen D. Curtis, will be referred to as "Curtis."
Intervening plaintiff/appellant, Carolyn June Curtis, will be referred to as "Mrs. Curtis." When discussing Curtis and
Mrs. Curtis together, they will be referred to as appellants. Defendants/appellees, William M. Rice and Rice &
Pap uchis C onstruction C omp any, Inc., will be referred to as "Rice."
of The Hollows to him orally.                        Rice then claimed that Curtis later

changed the compensation and orally conveyed a one-half interest in

lot 14 and a one-half interest in lot 21 to Rice.                                      Curtis, however,

claimed that he merely gave Rice a security interest in lot 14.                                                In

addition,          Curtis         claimed         that        the      contract          for      the       road

construction included moving the soil and that he paid the contract

price in full.



             Eventually, Rice and Curtis entered into an oral partnership

agreement to purchase the Yearwood Property and to subdivide and

sell it.           Rice agreed to obtain the financing, and the parties

purchased the land. Curtis orally agreed to contribute the 10 foot

strip to the partnership. In addition, Rice claimed that he and

Curtis orally agreed to contribute their interests in lots 14 and

21 to the partnership.2                     Rice and Curtis filed three plats.                               The

final plat subdivided a portion of the Yearwood Property and

included the ten foot strip and lot 21 of The Hollows.                                                      This

subdivision became known as The Hollows Section Two.                                          When each of

The Hollows Section Two lots which included frontage formed by the

ten-foot strip and the former lot 21 of The Hollows was sold, the

deeds were signed by Curtis, Rice, and Mrs. Curtis.                                          Prior to the

filing of the lawsuit, all of The Hollows Section Two lots were

sold        except     for      lot     23.3         Pursuant         to     the     oral      partnership

agreement, Rice and Curtis used the proceeds from the sales of The

Hollows Section Two lots to pay off the loan.



             Curtis later had a plat prepared for the remaining portion

of the Yearwood Property.                       The resulting plat used lot 14 of The

Hollows as access to and from what was intended to become The


        2
            The parties never executed any documents conveying any property to the partnership. Instead, Rice and
Curtis agreed that all real property contributions would remain in the name of the individual partners until the
partners sold the property to third parties.

        3
            Lot 23 of The Hollows Section two is comprised of the Yearwood Property and a portion of the ten foot
strip. T he pa rties do not disp ute the p artnership's interest in this lot.

                                                        3
Hollows Section Three.                         The Sumner County Planning Commission

approved the plat and Rice signed it.                                        Curtis, however, never

signed the plat, and neither party ever recorded it.4



             Ultimately, Curtis filed a complaint for the dissolution of

the partnership.                    In     his      complaint,           Curtis        admitted          that          he

contributed the 10 foot strip and lot 21 to the partnership.                                                    Rice

claimed that lot 14 was also part of the partnership's assets.

After an unsuccessful settlement conference, the court ordered an

independent survey of several pieces of land including the 10 foot

strip and lot 14.                  Thereafter, the parties stipulated to the real

property values as determined by Special Commissioner William C.

Boyers.5



             On 15 December 1995, the court entered its final order. The

court made the following relevant findings:                                      1) Curtis gave Rice a

one-half interest in lots 14 and 21 in exchange for moving the

soil; 2) Rice and Curtis contributed lots 14 and 21 to the

partnership; 3)the statute of frauds is inapplicable because this

was a contribution of land, not a sale; 4) Curtis is estopped from

relying on his interest in lot 14 as a tenant by the entirety to

prevent the contribution; and 5) the value of Curtis' contribution

of the ten foot strip was $5,000.00.



             Curtis filed a motion to alter or amend the final judgement

as to the finding that the value of the ten foot strip was

$5,000.00 rather than $52,800.00 as stipulated by the parties.                                                         On

1 February 1996, the court denied the motion and stated as follows:

"The Stipulations entered into by the parties prior to trial were

         4
            At the time of the filing of the lawsuit, the unsold partnership property included lot 23 of The Hollows
Section Two and the remaining, undeveloped Yearwood Property. In addition, lot 14 of The Hollows over which
there is a dispute as to ownership had not been sold.
         5
         Mr. Boyers valued lot 21 at 25,000.00, lot 14 at $26,900.00, and the
ten foot strip at $52,800.00.



                                                           4
stipulations as to the amount of each partner's claim against the

Partnership.      There was no stipulation as to the 'value' of the

various contributions of each partner."



          On 7 February 1996, Mrs. Curtis filed a motion to intervene

to protect her interest in lot 14.             On 15 May 1996, the court

entered its final order as to Mrs. Curtis.        The order estopped Mrs.

Curtis from claiming any interest in lot 14.



     On 21 February 1996, Curtis filed his notice of appeal.             Mrs.

Curtis filed her notice on 29 February.         On 6 March 1996, the court

entered    an   order   granting   a   stay.    Appellants   presented   the

following issues:

          1.   Whether the Trial Court erred in finding that
          the Statute of Frauds is inapplicable to an oral
          agreement   to   contribute   real  estate   to   a
          partnership?
          2.   Whether the Trial Court erred in finding that
          [appellants] are estopped to assert their ownership
          of land as tenants by the entirety as a defense to
          [Rice's]   claim   that  [Curtis],   only,   orally
          transferred to [Rice] one-half ownership interest
          in such lands, and then [Rice and Curtis] orally
          transferred full ownership of such lands to [Cutis
          and Rice's] Partnership?
          3.   If these lands so owned by [appellants] were
          somehow enforceably transferred as contributions to
          the Partnership, are [appellants] entitled to
          compensation from the Partnership for the value of
          such land?
          4.   Whether the Trial Court erred in finding that
          [Curtis'] claim against the Curtis and Rice
          Partnership for the value of a ten-foot wide strip
          of land is $5,000, rather than $52,800 as
          stipulated by the parties?
          5.   The trial court erred in ordering the sale of
          lot #14 at public auction for the reason Mrs.
          Curtis owns a right of survivorship in such
          property created by tenancy by the entireties.



I.        ISSUES ONE, TWO, THREE, AND FIVE



          A.    STATUTE OF FRAUDS



          In finding that the transaction involved in the instant case


                                       5
was not within the statute of frauds, the trial court stated as

follows:

            The court finds the statute of frauds to be
       inapplicable in this case. The issue at bar is the
       oral   agreement  between  Curtis   and  Rice   to
       contribute certain real estate to accomplish the
       objective of the partnership.     The statute of
       frauds relied upon by plaintiff applies to
       contracts "for the sale of lands, tenements, or
       hereditaments."

The trial court effectively held that the statute of frauds did not

apply to either the first oral transaction where Curtis allegedly

transferred a one-half interest in lots 14 and 21 to Rice or to the

second alleged oral transaction of Curtis and Rice transferring

ownership of lots 14 and 21 to the partnership.



       The General Assembly enacted subsection (a)(4) of the

Tennessee   Statute   of    Frauds     for    the    protection    of   Tennessee

residents who owned real estate.             Irwin v. Dawson, 197 Tenn. 314,

317, 273 S.W.2d 6, 7 (1954).          Tennessee Code Annotated section 29-

2-101 provides, in pertinent part, as follows:

       (a) No action shall be brought:
            . . . .
        (4) Upon any contract for the sale of lands,
       tenements, or hereditaments, or the making of any
       lease thereof for a longer term than one (1) year;
       or,
        (5) Upon any agreement or contract which is not to
       be performed within the space of one (1) year from
       the making thereof;
       unless the promise or agreement, upon which such
       action shall be brought, or some memorandum or note
       thereof, shall be in writing, and signed by the
       party to be charged therewith, or some other person
       by him thereunto lawfully authorized.

Tenn. Code Ann. § 29-2-101(a)(4) (Supp. 1996).



       "The   purpose      of   the    statute      of   frauds   'is   to   reduce

contracts   to a certainty, in order to avoid perjury on the one

hand and fraud on the other.'"              Baliles v. City Serv. Co., 578

S.W.2d 621, 623 (Tenn. 1979)(quoting Price v. Tennessee Prod. &

Chem. Corp., 53 Tenn. App. 624, 385 S.W.2d 301 (1964)).                         The



                                        6
statute    of   frauds   protects   "owners   of   land   from   hasty   or

inconsiderate agreements concerning a valuable species of property,

and [guards] against misunderstanding as to the nature and extent

of such agreements."     Brandel v. Moore Mort. & Inv. Co., 774 S.W.2d

600, 604 (Tenn. App. 1989).          The statute also "'ensures that

transactions involving . . . realty interests are commemorated with

sufficient solemnity . . . that the parties and the public can

reasonably know when such a transaction occurs.'"          D & S Coal Co.

v. USX Corp., 678 F.Supp. 1318, 1322 (E.D. Tenn. 1988)(quoting

Seale v. Citizens Sav. & Loan Ass'n, 806 F.2d 99, 104 (6th Cir.

1986)).



          The "party to be charged therewith" means the owner of the

land.   Patterson v. Davis, 28 Tenn. App. 571, 577, 192 S.W.2d 227,

229 (1945). The term "Sale" means alienation in its broadest sense

and includes many types of land transfers.          Lambert v. Home Fed.

Sav. & Loan Ass'n, 481 S.W.2d 770, 773 (Tenn. 1972) (applying the

statute to the creation of mortgages and deeds of trust); Goodloe

v. Goodloe, 116 Tenn. 252, 254, 92 S.W. 767, 767 (1906) (applying

the statute to devises of land); Nunnelly v. Southern Iron Co., 94

Tenn. 397, 409-10, 29 S.W. 361, 365 (1895) (applying the statute to

the creation of easements); Perkins v. Cheairs, 61 Tenn. 194, 202

(1872) (applying the statute to parol contracts to convey land in

the future).     The term includes a contract binding one to give or

donate land.     Bailey v. Henry, 125 Tenn. 390, 399, 143 S.W. 1124,

1127 (1912).     "[W]here one goes into possession under a parol of

donation he occupies the same relation in respect to his possession

as a purchaser by parol."     Inman v. Tucker, 138 Tenn. 512, 529, 198

S.W. 247, 251 (1917). In addition, oral agreements or contracts to

enter into written agreements which are within the scope of the

statute of frauds are also within the statute because to allow the

enforcement of such an agreement would be tantamount to taking the

                                     7
main contract out of the statute.          White Motor Corp. v. Nashville

White Trucks, Inc., 5 B.R. 112, 118 (Bankr. M.D. Tenn. 1980); see

Patterson, 192 S.W.2d at 229.



        "In order to satisfy the statute of frauds, the entire

agreement must be in writing.        It cannot be partly in writing and

partly in parol."       Eslick v. Friedman, 191 Tenn. 647, 655, 235

S.W.2d 808, 812 (1951).        "'The memorandum required by the statute

of   frauds   must   show   an    existing    and    binding     contract,   as

distinguished    from   mere     negotiations,      and   must   disclose    the

particular contract sought to be enforced rather than some other

contract or promise.'"         Black v. Black, 185 Tenn. 23, 30, 202

S.W.2d 659, 662 (1947)(quoting 37 C.J.S. Statute of Frauds §

180(a)).   The statute of frauds "is directed at the remedy and not

the validity of the contract."        Ashley v. Preston, 162 Tenn. 540,

543, 39 S.W.2d 279, 279 (1931).           Therefore, a parol contract for

the sale or disposition of land is not void, but voidable.              Cobble

v. Langford, 190 Tenn. 385, 390, 230 S.W.2d 194, 196 (1950).



        "'A writing is indispensably requisite, under the provisions

of the Statute of Frauds whenever an estate or interest in land is

to be affected, unless the circumstances are such that a refusal to

execute the agreement would operate as a fraud.'"                Bloomstein v.

Clees Bros., 3 Tenn. Chan. 433, 442 (1877)(quoting 2 Am. Ld. Cas.

558).   Strict application of the statute of frauds might, under

proper circumstances, be mitigated by showing mistake, fraud, or

equitable estoppel.     The fraud which will take a case from within

the operation of the statute is not fraud in making a promise with

no intention of fulfilling it.        Instead, it is fraud in which one

party prevents the reduction of the agreement into a writing or

when one party induces the other into believing that a writing was

created.      To explain, the party against whom the statute is

                                      8
asserted must have intended that the agreement be put in writing,

but due to the fraud of the other party this intention was not

carried out.     Hackney v. Hackney, 27 Tenn. 451, 455-58 (1847).



          Part performance of a parol contract will not prevent the

application of the statute of frauds although the doctrine of

equitable estoppel has mitigated the harshness of this rule in

cases where enforcement of "the statute of frauds would make it an

instrument of hardship and oppression, verging on actual fraud."

Baliles, 578 S.W.2d at 624; accord GRW Enters., Inc. v. Davis, 797

S.W.2d 606, 611 (Tenn. App. 1970).



          We think it is clear that the statute of frauds applies to

the first oral transaction and equally clear that the statute

applies to the second transaction. The contribution of real estate

to a partnership is no different than a sale because it clearly

affects    the   title   to    the   real     estate.    To   construe    such   a

transaction otherwise is to defeat rather than to carry out the

purpose of the statute.



          The trial court, without citing any case law or statutes,

held that appellants were estopped to assert any defense to Rice's

claims to lot 14, lot 21, and the ten-foot strip.                  We are of the

opinion that the record does not support this conclusion with any

showing of fraud, hardship, or oppression.               The record is clear

that Rice and Curtis never intended to put the alleged transfer to

Rice or    the   alleged      transfer   to    the   partnership    in   writing.

Instead, they knowingly relied on oral conveyances and agreements.

Given the parties' intentions and actions, this court is of the

opinion that if there were any fraud on the part of appellants it

was not the type of fraud which would take the transaction out of

the statute of frauds.



                                         9
          Moreover, the record does not show that the enforcement of

the statute of frauds would make it an instrument of hardship and

oppression. Regardless of any decision by this court to modify the

trial court's order, Rice has reimbursed himself from partnership

funds   for   all   but   $6,313.00   of   his    total   expenditures.     In

addition, he received an additional $12,500.00 from the sale of lot

28 of The Hollows Section Two and will receive one-half of the

profits    realized   from   the   sale    of    the   remaining   partnership

property.     In other words, Rice has already recouped all of his

investment and made over $6,000.00 in profits.



          Curtis has received $12,500.00 from the sale of lot 28 while

incurring expenses totaling more than $26,000.00.              If appellants

are estopped from asserting their defenses, they would lose their

ownership interest in lot 14 of The Hollows and any reimbursement

for lot 14, lot 21, or the ten-foot strip.



          As to distribution of partnership assets, this court is of

the opinion that appellants should receive compensation for lot 21

of The Hollows.       Lot 21 has been subsumed into the lots of The

Hollows Section Two.      The parties sold the lot prior to this action

and used the proceeds to pay off The Hollows Two mortgage and/or to

reimburse Rice for his partnership contribution.               We are of the

opinion that the partnership should pay the sum of $25,000.00 to

appellants based on the stipulations of Rice and Curtis.              As to lot

14, it appears it is still included within The Hollows.               We are of

the opinion that the lot is free of any enforceable claims by Rice

or the partnership and that it is the property of appellants.

Thus, it was error for the court to order the property sold at

auction with the proceeds going to the partnership.                The property

shall remain that of appellants.           The issues relating to the ten

foot strip are addressed below.



                                      10
         B.   TENANCY BY THE ENTIRETY



         "A tenancy by the entireties is created when property is

conveyed to a husband and wife, without more."         14 Tenn. Jur.

Husband and Wife § 13 (1996); accord Young v. Brown, 136 Tenn. 184,

187, 188 S.W. 1149, 1150 (1916).      Under tenancy by the entirety,

neither of the tenants may alienate any portion of the estate

except his or her right of survivorship without the consent of the

other.   Any attempt to do so without the consent of the other is

void. Robinson v. Trousdale, 516 S.W.2d 626, 632 (Tenn. 1974).

Here, it is undisputed that the land which comprised lot 14, lot

21, and the ten foot strip were conveyed to "Allen D. Curtis and

wife, Carolyn June Curtis" and that appellants held the property as

tenants by the entireties.



         Therefore, even if Curtis made an enforceable conveyance to

Rice of a one-half interest in lot 21 and a one-half interest in

lot 14, the conveyance is void except as to Curtis' right of

survivorship.    Given this, Rice never had a viable ownership

interest in these lots to contribute to the partnership.        If any

contribution of the property was made to the partnership, it was

made by appellants only and only they have a claim against the

partnership for compensation.    Nevertheless, it is the opinion of

this court that Curtis did not make an enforceable conveyance to

Rice because there was no writing and because Rice failed to

establish that the statute of frauds should not apply.



II.      WHETHER THE TRIAL COURT AWARDED      THE   PROPER   AMOUNT   OF
         DAMAGES FOR THE TEN-FOOT STRIP.


         Curtis contends that the only issues before the trial court

involved the allowance of claims submitted by Curtis and Rice

against the partnership.   Curtis and Rice stipulated to the amount



                                 11
of the claims in writing.                       Except for Curtis' claim to the ten-foot

strip, the trial court when awarding damages either allowed the

claim and awarded an amount equal to the stipulated value or

disallowed the claim entirely.



              "Stipulations are binding on the parties as well as the

court.        A party cannot assert a position contrary to that which he

has stipulated."                  Rutherford Builders, et al v. Security Federal

Savings & Loan, No. 87-114-II, 1987 WL 18958, at * 5 (Tenn. App. at

Nashville           October           28,      1987).             Here,         the      language           of      the

stipulations is clear and unambiguous.                                    Section three states: "The

real property values determined by Special Commissioner William C.

Boyers . . . are stipulated and agreed to by the parties."                                                          The

appraisal assigned a total value of $52,800.00 to the ten foot

strip, and the stipulations listed $52,800.00 as the "[v]alue of

10-foot [s]trip."6                      The transcript reveals that there was no

confusion by the court, Rice's attorney, or Rice regarding the

binding effect of the stipulations as to the valuation of the

property.            For example, Rice's attorney stated: "Your Honor, the

value of the ten-foot strip and lot 21 has been stipulated.                                                           If

counsel is trying to inquire as to what the value of that is, it's

been stipulated."



              Although          the      trial       court        could       have       decided         that       the

partnership should not compensate Curtis for the ten foot strip,

once it determined that it should allow the claim the court should

have awarded damages equal to the stipulated value of $52,800.00.

We are of the opinion that the trial court made a finding that was

inconsistent with the stipulations which were binding on the

parties and the court.                        In addition, Mrs. Curtis is entitled to


         6
           Mr. Boyers actually assigned two values to the property. First, he assigned a nominal value of $5,000.00
to the property. Ne xt, he co nsidered the deve lopm ent costs for the ro ads and wa ter lines alo ng the ten foot strip.
Based on this, he concluded that the development costs equaled $47,816.00. After adding together both values and
rounding off the numbers, Mr. Boyers concluded that the ten foot strip had a total value of $52,800.00.

                                                           12
one-half of the compensation from the partnership because she owned

a one-half interest in the property.           Thus, the trial court should

have awarded Curtis $26,400.00 and Mrs. Curtis $26,400.00.



III.      CONCLUSIONS



          Therefore, it results that the statute of frauds is a

defense to the enforcement of any of the alleged oral transfers of

lot 14, lot 21, or the ten foot strip of The Hollows.                    Appellants

are not estopped from asserting their interests as tenants by the

entireties as a defense to Rice's claims.                Appellants are entitled

to reimbursement by the partnership for the $25,000.00 value of lot

21 and for the $52,800.00 value of the ten foot strip.                   Ownership

of lot 14 has not been transferred to the partnership and remains

in appellants.



          The judgment of the trial court is reversed, and the cause

is remanded to the trial court with orders to enter judgment

consistent    with    this    opinion   and    for       any   further    necessary

proceedings.         Costs    on   appeal    are    assessed     to   defendants/

appellees,    William    M.    Rice   and    Rice    &    Papuchis    Construction

Company, Inc.




                                         __________________________________
                                         SAMUEL L. LEWIS, JUDGE



CONCUR:



_________________________________
HENRY F. TODD, P.J., M.S.



_________________________________
WILLIAM C. KOCH, JR., JUDGE


                                        13
                   IN THE COURT OF APPEALS OF TENNESSEE

                                     MIDDLE SECTION

                                      AT NASHVILLE                              FILED
                                                                                  August 1, 1997
ALLEN D. CURTIS and wife,                        )
CAROLYN JUNE CURTIS,                             )                             Cecil W. Crowson
                                                 )                            Appellate Court Clerk
       Plaintiff/Appellants,                     )       Appeal No.
                                                 )       01-A-01-9605-CH-00211
v.                                               )
                                                 )       Sumner Chancery
WILLIAM M. RICE, and                             )       No. 94C-324
RICE & PAPUCHIS CONSTRUCTION                     )
COMPANY, INC.,                                   )
                                                 )
       Defendants/Appellees.                     )




                                         ORDER

           Defendants have filed a most respectful petition for rehearing of this court's opinion

which the court has considered and finds to be without merit. Each of the matters discussed in the

petition for rehearing were considered in the original opinion and found to be without merit.

           It is therefore ordered that the petition for rehearing be and the same is overruled with

costs to the defendants.

           Enter this ______ day of August, 1997.




                                                 _________________________________
                                                 HENRY F. TODD, PRESIDING JUDGE, M.S.


                                                 _______________________________________
                                                 SAMUEL L. LEWIS, JUDGE


                                                 _______________________________________
                                                 WILLIAM C. KOCH, JR., JUDGE
