30 N.J.L. 399 | N.J. | 1863
This is an action of assumpsit, brought by the plaintiff against the defendant, upon a promise alleged to have been made by the defendant to the plaintiff’s intestate, on the 2d day of April, 1849, by which the defendant, in consideration of a sale to him, by one James Mead, of the house and lot No. 33 Leonard street, in the city of New York, at the price of $5000, promised Mead to pay the said intestate, as part of the said purchase money, one hundred dollars a year, after said Mead’s death, during her natural life. The plaintiff, on the trial, proved the execution and delivery of the deed for the said premises by Mead to the defendant, on the said 2d day of April, 1849, the promise to Mead, by the defendant, to pay the intestate, as
The plaintiff thereupon rested; whereupon the defendant moved for a nonsuit, upon the following grounds :
1st. Because plaintiff had proved no promise to pay within six years.
2d. Because the action is to recover the arrears of an annuity, which cannot be created except by deed.
3d. Because it is an attempted testamentary disposition.
-4th. Because it is an agreement to pay the debt of another, and not in writing, and void under the statute of frauds.
5th. Because it is an agreement not to be performed within one year, and not being reduced to writing, is void under the statute of frauds.
6th. Because it was an attempt to create a trust, and not being in writing is void by the statute of frauds.
The court granted the nonsuit, and certified the case to this court for their advisory opinion, whether the nonsuit was rightly granted upon any of the grounds above stated. We are not asked if the nonsuit was rightly granted generally, but whether it was rightly granted for the grounds stated.
As to the first ground taken,, the statute of limitations does not commence to run until six years after the cause of action accrues. Here the cause of action only accrued at the end of each year after the death of Mead, and until the intestate died. Mead died in 1849, and the intestate in 1858, and this suit was brought in 1859. There are several years, therefore, which could not have been barred by the statute.
The second ground for nonsuit assigned is — because the action is brought to recover the arrears of an annuity, which cannot be created except by deed.
But the cause of action set forth in the declaration is not an annuity, nor does the proof show an annuity. The de
The plaintiff’s claim is not for an annuity, within the technical meaning of the term, at all, but upon a simple assumpsit to pay. The doctrine of annuities has no application therefore to the case. The second ground assigned for a non-suit therefore fails.
The third ground assigned for a nonsuit was, that the proceedings between these parties, ■ Mead, the intestate, and the defendant, was an attempted testamentary disposition. But how so? It was not so, as regarded the intestate and the defendant; nor can I see how it was on the part of Mead. He owed the intestate, and it wanted no testamentary disposition to force him to pay his debts. He might pay her by any legal arrangement inter vivos that he saw 'fit. If he saw fit to sell real estate, and pay her out of the proceeds at any such time as suited himself, there was nothing testamentary about it. He might sell his house, and take pay on any terms of credit in his discretion. Suppose he had exacted from the purchaser a note payable to the intestate as part pay for the lot, there could be nothing testamentary or illegal in it. A note of hand by A. to pay B., after the death of C., is perfectly good, so far as anything testamentary about it is concerned.
The fourth ground assigned for granting the nonsuit was, because the agreement, of the defendant was to pay the debt of another person, and not in writing, and so void under the statute of frauds. But this agreement of the defendant was evidently, not one to pay the debt of another. It was an agreement to pay his own debt. He, by taking the deed, became indebted to the grantor, and his agreement vas to pay a part of his indebtedness to the grantor, to his order or appointee. It was the same, in legal effect, .as agreeing to pay so much of the consideration of the deed to the grantor himself. By so doing he was not paying the debt of Mead, but his own debt to Mead.
The sixth ground uged for a non-suit was, because it was an attempt to create a trust, and not being in writing, is void by the statute of frauds. But I cannot see what trust was here attempted to be created. It was an ordinary deed of bargain and sale for the consideration therein expressed. The defendant agreed to pay the consideration as the grantor prescribed. The grantee assents to the terms of payment, among ■which was the agreement to pay part of the consideration money to the intestate, in place of paying it to the grantor himself. There was no more trust created in agreeing to pay the intestate, than in agreeing to pay the grantor himself. There was no other trust than there always is between the vendor and vendee, when the vendee agrees to pay the consideration at a future time, or in the vendee
Ogden and Van Dyke, Justices, concurred.
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