Abell v. Douglass

| N.Y. Sup. Ct. | May 15, 1847

By the Court, Beardsley, J.

On the purchase of the defendant’s right to the land in Erie, or his interest in the speculation, whichever it should be called, the plaintiff engaged to pay the defendant’s share of the note for $2000 which had been given when the land was purchased, and which share amounted to $250. He also engaged to pay the defendant three sums of $800 each, for which three promissory notes, at four, eight and twelve months, were then given. The $250 were duly paid, as also was the first of the three notes, and for these two sums the plaintiff seeks to recover in this action.

These payments were made as money due from the plaintiff, and not at the request of the defendant or upon any promise of repayment by him. When made the plaintiff was aware of every fact and circumstance connected with the transaction, and acted with his eyes open without the pretence of fraud, coercion or mistake. I am unable to discover any reason why the plaintiff was not legally bound to" make these payments, as he had expressly promised to do; but at all events they were purely voluntary, and there is no principle on which a promise of repayment can be implied. (Chit. on Cont. 633, 639, ed. 1842; 2 Phil. Ev. 119, 120; 1 Chit. Pl. 384; 1 Saund. 264, note; 2 Saund. Pl. and Ev. 679; Broome's Legal Maxims, 127 to 130; Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunt. 144; Wilson v. Ray, 10 A. & E. 82.) The exceptions taken on the part of the plaintiff cannot be sustained.

The land purchased at Erie was conveyed to McCluer, who was to hold the same in trust for the other parties in interest as well as for himself. At law the defendant had no title to this land, although his right iii equity was entirely clear. The land was in Pennsylvania, and the validity of the transfer of the defendant’s equitable right therein, which he assumed to make to the plaintiff, would necessarily depend upon the law of that state, and not upon the law of New-York. We are to assume that the common law was in force in Pennsylvania; and as far as appears by the evidence given on the trial, there is nothing in the statute law of that state to prevent a transfer by parol of the defendant’s equitable interest in the land, being as effective as a transfer in writing would have been.

There are three distinct features of the act of 29 Car. 2, ch. 3, which it may be proper here to notice. Subject to the exception of leases not exceeding three years, that act provides as fellows:

1. “ All leases, estates, interests of freehold or terms of years, or any uncertain interests of, in or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery of seisin only or by parol, and not put in writing, and signed by the parties so making or creating the same,” shall have the force and effect of leases and estates at will only; and such leases, estates and interests shall only be assigned, granted or surrendered by deed or note in writing. (See the act. Rob. on Fr. 467, §§ 1, 2, 3.)

2. No action shall be brought upon any contract for the sale of lands, tenements or hereditaments, or for any interest in or concerning them, unless the agreement be in writing and signed by the party to be charged therewith. (§ 4.)

3. Trusts, with certain qualifications, can only be declared, created or transferred in writing. (§§ 7, 8, 9.)

These provisions have been substantially re-enacted here, and with slight modifications, not material to be noticed, are now law in this state. (1 R. L. of 1813, p. 78, §§ 9, 10, 11; p. 79, §§ 12, 13, 14; 2 R. S. 134, §§ 6 to 10; 3 id. 653 to 656.)

But it does not appear from the section of the statute law of Pennsylvania which was proved on the trial of this cause, that any part of these provisions beyond the 1st, 2d and 3d sections of the act of Car. 2, above referred to, have been enacted in that state. These sections relate, exclusively, to the actual creation and transfer by parol of legal estates or interests in land, and do not touch the validity of parol agreements for the sale or transfer of such estates or interests. Such agreements are accordingly held, in Pennsylvania, to be legal and obligatory upon parties who enter into them. (Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Bin. 450; Lowry v. Mehaffy, 10 Ser. & Rawle, 387.) And as there is not shown to be any statute of that state forbidding the sale or transfer, by parol, of an equitable interest in land, the agreement between these parties was legal and binding upon them. By that agreement the equitable interest of the defendant in the land conveyed to McCluer was to be transferred to the plaintiff, and this transfer was the consideration fot the three notes of $800 each, executed by the plaintiff to the defendant. The transfer of, or an agreement to transfer, an equitable interest, is a good consideration for a promise. The notes given by the plaintiff, in this case, were therefore binding upon him.

Besides all this, the plaintiff has had the full benefit of his contract with the defendant, and on no just principle can he be allowed to escape from the engagement entered into by him. The legal title to the land was in McCluer, who was jointly interested with the plaintiff in the-purchase of the interest of the defendant. Since that purchase was made the defendant has not interfered with the land or claimed any interest in it; and it appears that by. an arrangement between the plaintiff and McCluer on the one hand, and Reed, the original owner of the land, on the other, it has been reconveyed to him in satisfaction and discharge of the liabilities of the plaintiff and McCluer to him. The plaintiff has therefore had the full benefit of his bargain with the defendant; and although that, probably, was not one of much profit, he cannot, on that ground, be permitted to violate his engagements with impunity. There was error in rejecting the notes as a valid set-off and there must be a new trial.

New trial ordered.