10 Paige Ch. 526 | New York Court of Chancery | 1844
From the testimony in this case I think it is very doubtful whether the premises in question were not set up in such a manner as to induce the defendant to suppose the block was to be sold together, as one entire parcel; and without reference to the number of building lots which might possibly be made out of it if the mill pond, which overflowed the land, should be drained off and the bed thereof be filled up to the contemplated grade of "the city. The answer of the defendant, which is responsive to the bill in this respect, is corroborated by the testimony of Day, the city surveyor. He was present when the premises in question were put up ; and he swears, that from what the auctioneer said at the time, he understood block 13 to be put up as one parcel, and to be sold altogether and not by the lot. The auctioneer himself has no distinct recollection on the subject, independent of the entries in the book which were not made by himself. And as it appears, from the testimony of Williams, that the entries in the books, as they now are, must have been made more than four days after the sale, no reliance whatever can be placed upon the books as evidence of a fact. Two or three witnesses who were at the sale, however, think they have a clear recollection that this block was put up and sold by the lot, as the others were. But to show how little reliance is to be placed on the recollection of any witness as to matters in which he had no immediate interest, nor any thing to impress' them upon his mind at the time, or until long afterwards, one of the complain
Although this would, be sufficient of itself, to make it my duty to reverse the decree appealed from, it may be proper to consider the question arising under those statutory provisions, in reference to the claim of the respondents
Where the complainant in his bill sets up an agreement which by the statute of frauds would be invalid unless it was in writing, and subscribed according to the provisions of the statute, the legal presumption is that it was in writing, unless the contrary is stated in the bill. And if the agreement, as stated in the bill, is denied by the answer of the defendant, the complainant must produce IegaL evidence of the existence of such an agreement upon the hearing; which can only be done by producing a written agreement, duly executed according to the provisions of the statute. (Cozine v. Graham, 2 Paige's Rep. 17. Ontario Bank v. Root, 3 Id. 478.) Where the agreement is of such a nature as to authorize this court to correct any mistake which has been made therein, if the written agreement does not in fact contain the true agreement between the parties, the complainant, when he wishes to introduce parol proof to correct it, should not merely state the agreement as it ought to have been reduced to writing, but he must also state the substance of the written agreement. And he must show wherein it differs from the one actually made; so that if the alleged mistake is denied in the answer, the testimony may be directed to the question whether a mistake has or has not occurred in reducing the agreement to writing. The party alleging the mistake, in such a case, holds the affirmative; and he must satisfy the court beyond all reasonable doubt that such an agreement as he claims to have been made was in fact made between the parties, and that either by fraud or accident a mistake has occurred in reducing the agreement to writing. Whether a party can come into this court for the specific performance of a mere executory agreement for the sale of lands, which in its terms is materially variant from the written agreement between the parties that has been executed according to the statute, and where there has been ' no part performance or other equitable circumstance sufficient to take the case out of the statute of frauds, as a mere
The former statute of frauds provided that no action should be brought whereby to charge any person upon any contract or sale of lands,v&c. or of any interest in or concerning them, unless the agreement or some note or memorandum thereof should be in writing and signed by the party to be charged therewith, or by some person thereunto by him or her lawfully authorized. (1 R. L. of 1813, p. 78, § 11.) Under this statute, and under a similar provision in the statutes in England and in our sister states, it was held that the literal act of signing was not necessary, but that it was sufficient if the name of the party was written by him, or by his authority, in any part of the agreement or memorandum of the same. And it was a disputed question, both in England and in this country, whether an auctioneer was the agent of both parties, so as to make his written memorandum of the terms and conditions of the sale, and of the names of the parties thereto, entered in his book at the time of such sale, a sufficient signing of the agreement by the agent of both parties, within the intent and meaning of the statute. (Walker v. Constable, 1 Bos. & Pull. 306. Buckmaster v. Hanop, 7 Ves. 344. Coles v. Trecothick, 9 Id. 249 ; 13 Id. 472, S. C. Hamsfield v. Johnson, 1 Esp. Rep. 101. Emerson v. Heelis, 2 Taunt. 28. White v. Proctor, 4 Id. 209.) In the two last cases it was settled in England, contrary to what had formerly been understood to be the law there, that the auctioneer was the authorized agent of both parties in making a contract for the sale of real estate, as well as on a sale of goods; so as to make his entry of the agreement in his books, at the time of sale, binding upon both.
These decisions were afterwards acquiesced in by Sir William Grant, and by Lord Eldon in the case of Kemeys v. Proctor, (3 Ves. & Bea. 57, 1 Jac. & Walk. 350, S. C.) though contrary to their previous opinions. The same decision was made by Chancellor Kent, in McComb v. White, (4 John. Ch. Rep. 659.) And it has since been, held in
But under the provisions of our revised statutes, a mere memorandum in the auctioneer’s books, made by him, or his clerk under his direction, specifying the property sold, the price, the terms of the sale, and the names of the vendor and the purchaser, is not sufficient to make a valid and binding contract for the sale of land ; though it is expressly declared to be sufficient in relation to a sale of goods. (2 R. S. 136, § 4.) The eighth and ninth sections of the title of the revised statutes in relation to fraudulent conveyances relative to lands, declare that every contract for the sale of lands, or any interest in lands, shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the sale is to be made, or by the agent of such party lawfully authorized. And the court for the correction of errors, in the recent case of Davis v. Shields, (26 Wend. Rep. 341,) decided, that to constitute a subscription of the contract, within the meaning of the statute, the name of the party or, his agent must be signed below or at the end of the contract, or of the memorandum thereof. In the case under consideration, the only notes or memorandums of the terms of the sale which purported to be subscribed by any persons as the vendors of the property, were the receipt signed by Williams “ for Bleeker & Sons,” the auctioneers, and the substituted receipt of W. K. Thorn, as one of the executors of J. Coles. But neither of these receipts expresses either the terms or conditions, or the consideration of the sale of the particular block which is in controversy in this suit. Nor is there any thing upon the map, exhibit C. to which it refers, to designate the boundaries of block 13, or to show whether the block included the whole 134 lots and fractions of lots to the north of Coles’ street, or only the 110 lots which lie east of
The decree appealed from must be reversed ; and the bill of the complainants must be dismissed with costs in the court below, but without costs to either party upon this appeal. The costs to be paid by them out of the fund