5 Paige Ch. 620 | New York Court of Chancery | 1836
When this case was formerly before me, upon the demurrer of the defendant M’Crea to the bill of the Purmorts for want of equity, I came to the conclusion that the facts stated in the bill were sufficient to entitle the complainants to equitable relief. And as the defendant did not think proper to appeal from the decree overruling the demur
the complainants had a perfect remedy at law upon the covenants in the deed of M’Crea, or by an action for the alleged deceit, and that they had no right to come into this court for equitable relief. Another and a conclusive answer, however, to tin's ejection, is, that it was not insisted upon by the defendant in his answer; and it is too late for a defendant to make the objection for the first time at the hearing, upon pleadings and proofs, that the complainants had an adequate remedy at law. The rule on this subject is so well settled that it is unnecessary to refer to any authorities in its support. I shall therefore proceed to examine the case on its merits. The right of the complainants to relief upon their cross-bill, or move properly their original bill in the nature of a cross-bill, depends principally upon the transactions which occurred at the time of giving the deed to John Purmort, the elder, in 1819, and upon the construction of the covenants contained in that deed. It is necessary, however, that I should advert to certain transactions which had previously occurred, for the purpose of ascertaining what were the rights of the several parties, under the agreement of May, 1810, the subsequent mortgages to the state, and the purchase of the premises, by M’Intyre in the name of M’Crea, at the sale upon the foreclosure. By (he agreement of May, 1812, Purmort, who was previously in possession under claim of title, became the purchaser of all of the interest of M’Crea in the premises, for the consideration of $2000, to be paid in four yearly payments. And by the acceptance of that agreement, he became the tenant at will of the premises, to M’Crea, with a right in equity to compel a specific performance of the contract. This equitable interest was transferred to the state by the giving of the mortgages by Purmort; and a valid equitable interest in the premises would pass to the purchaser under the foreclosure and sale by the officers of the state, subject to the lien of M’Crea for the unpaid purchase money under the contract of May, 1812. It is alleged, in the answer of M’Crea, that this con (ract was abandoned by the parties previous to the new
If I am right in the conclusion at which I have arrived on this part of the case, M’Crea, by the purchase of M’Infyre for him and in his name, had become the owner of Purmort’s equitable interest in the premises under the agreement of May, 1812, upon complying with the terms of sale ; and having the ■legal title in himself previous to that time, the right of redemption of Purmort in this mere equity would have been merged or .extinguished by the payment of the amount of the bid, without any written conveyance of the attorney general, so as to deprive Purmort of the right to claim a specific peformance of the agreement of May, 1812.- And Purmort’s equitable interest being sold for the full amount due to the state on the mortgages, he had a right to insist that the mortgage money should be paid by M’Crea,"as the person who, in equity, was primarily liable to the state. As -between M’Crea ■and Purmort, the mortgage debt was extinguished, and 'M’Crea was, in equity, bound to pay it and indemnify Purmort against it. But until the terms of the mortgage sale were complied with, the state had a lien upon the premises, in the hands of M’Crea, for the unpaid purchase money on that sale. And this lien was, in equity, although perhaps ■not at law, an.encumbrance of M’Ciea upon -the premises ■conveyed to Purmort by the deed of September, 1819. The -complainants have therefore an equitable tight to insist that he should be decreed to pay off and extinguish the debt due to the state, so as to indemnify them against that encumbrance ; and that equitable obligation arises from the deed of ■September, 1819, and the situation of the parties at the time that deed was given, independent of any representations or assumption of the payment of the state debt, by M’Crea, in September, 1819, which are not contained in the deed itself,
The testimony of Nicholson and Judge Finch, who were present when the deed was given, establishes the fact, beyond all question, that the parties acted upon the assumption that M’Crea had become responsible for the payment of the debt due to the state, and that the amount of such debt was included in, and formed a part of, the consideration of the §5100 bond and mortgage, which has since been paid. And the letters of M’Crea, of October, 1820, and March, 1826, show that he considered himself as under obligation to pay that debt, long subsequent to the conveyance of September, 1819.
I cannot discover any valid objection to the complainant’s claim arising out of the statute of frauds. The amount of the debt was included in the bond and mortgage to M’Crea, under the assumption or understanding that M’Crea had become responsible to the state for the payment thereof; and Purmort having subsequently paid the whole amount of that bond and mortgage, under the supposition that the state debt had been discharged, the defendant M’Crea is, in equity, bound to make good his representations made to Purmort at the time when such bond and mortgage was given. Neither can the statute of limitations avail the defendant in this case. Even if there had been an express promise to pay the debt to the state, upon which Purmort might have sustained an action at law if such promise was not complied with, the letter of March, 1826, is a recognition of an existing indebtedness at that time from which a new promise might be inferred. But, in this case, the bond and mortgage were given upon the assumption that M’Crea had already become responsible to the state for the payment of the debt; and this being a case of equitable cognizance merely, the six years limitation is not applicable.
Upon every principle of justice and equity, the defendant M’Crea is bound to pay off and discharge the mortgages to the state, and to fully indemnify the complainants against any costs or charges on account thereof. I shall therefore direct a decree to be entered, in these suits, requiring the defendant M’Crea to pay to the attorney general the amount