2 Lans. 451 | N.Y. Sup. Ct. | 1870
By the Court
It is settled, upon abundant authority, that a defendant, under section 150 of the Code, may set up an equitable defence to an action in the nature of a legal action, and defeat such action thereby, if he can establish such defence. (Dobson v. Pearce, 12 N. Y. R., 156; Crary v. Goodman, id., 266; Phillips v. Gorham, 17 id., 270.)
A recovery of property or the value thereof by a plaintiff who has the mere legal title, will not be allowed against a defendant who has the equitable title to such property, and who might in an action against the plaintiff, to compel a specific performance, compel the latter to convey or transfer such legal title to the defendant. The defendant must, of course, set up his defence, in such a case, by way of answer, and establish it by his evidence. If, therefore, the defendant, Milton H. Ottley, under whose authority the timber in question was taken, could have compelled the plaintiff to convey to Mm the timber, in an action for that purpose, the decision of the referee is right upon the merits. I do not see but that the facts found by the referee are warranted by the evidence in
Upon these facts it is obvious that the defendant, Milton H. Ottley, was the equitable owner of the timber, and that the plaintiff held the legal title as his trustee only. Milton H. could have compelled her to execute the writing, giving him the right to the timber, in an action for a specific performance, though he was not a party to the agreement. It was made for his benefit, and was to be performed to him. The consideration moved from him. It is now well settled that such a promise may be enforced in an action legal in form, as it always could have been in equity. The case upon this point is so clear upon the merits, that the other questions need not be examined at length.
The original contract of sale to the plaintiff was made
The evidence of the agreement in respect to the reservation of the timber, and that the plaintiff should convey it to the defendant, did not tend to vary or contradict the covenants in the deed. The agreement to convey the timber was founded iipon the deed, and was in no respect in hostility to it. It was like any other paroi agreement to convey an interest in land founded upon any other consideration, which has been paid by the purchaser. It is not the fault of the defendant, Milton H. Ottley, that his right now rests in paroi. It was agreed that it should be secured by a written conveyance, and it now rests in paroi merely because the plaintiff, in violation of her obligation, has refused to execute the written instrument. Under such circumstances, the plaintiff
The judgment is right and must be affirmed with costs.