Ferry v. . StephensFerry v. . Stephens
- Reporters:
- ,
- Before:
- Andbews
The judgment of the Special Term cannot be sustained on the ground upon which it was placed, that the aсtion is brought to enforce the specific performance of a voluntary agreement for the сonveyance of land. There was no want of consideration for the promise of Yincent Stephеns to convey the land. The promise of the plaintiff to pay the purchase-price was a valid сonsideration for the promise of *324 the other party. The agreement was in writing, signed by both parties, and was mutuаlly obligatory. It is quite immaterial, in the absence of fraud or‘mistake, neither of which is claimed, what object оr intention the parties may have had at variance with the terms of the agreement, or that both understoоd that the vendor would riot exact the payment of the purchase-money, or that he intended to give the land to bis sister. The contract did. not operate as a gift of the land, and the intention to give the land cоuld only be consummated by an actual conveyance, and the intention to make a present gift is conclusively rebutted by the covenant which the vendor took for the payment of the consideration. The рaroi understanding between the parties would be no answer to a suit brought by the vendor to enforce the рerformance of the plaintiffs promise to pay the purchase-money. The suit was not, thereforе, as the learned judge of the Special Term seemed to suppose, brought to enforce a vоluntary executory promise to give the‘land to the plaintiff The payment of the purchase-money by thе plaintifE was made by the agreement a condition precedent to the obligation of the vendor to convey the land, and the plaintifE, in order, to entitle herself to a specific performance of- the contract, was bound to show that payment, in fact, had been made, or that her promise to pаy the purchase-money had, in some way, been satisfied. It is conceded that there was no actual рayment of any part of the consideration. The plaintifE, to maintain her right of action, relies upon the fact that her brother, about a month after the contract was made, indorsed upon it a receipt in full of the purchase-price. The judge also found that the plaintiff’s brother, when the contract was made intended to give her the land, and that the consideration was inserted to conceal this intention from othеr relatives, and in connection with the finding that the receipt was subsequently indorsed on the contract, he finds thаt it was never intended that any payment should be made thereon. These findings, taken together, are equivalent to finding that the vendor, to accomplish his purpose to give the *325 land to Ms sister, gave her the debt wMch represented Ms interest in the land. He became, on the execution of the contract of sale, a trustеe for the‘plaintiff of the land,’ having a lien for the purchase-money, and she became Ms debtor for thе consideration.
That the receipt was intended as a gift of the’ debt is Clearly inferable from the’ facts fоund. His primary intention was to give her the land. The gift of the debt would not give her the legal title, but it gave her the whole beneficial interest, provided it operated as a legal satisfaction of her promise. The pоsition of the General Term, that when the lien of the vendor, under a contract for the sale of land, for the purchase-money, is extinguished by payment or by what, as respects the Vendor, was equivalent to payment, he becomes a naked trustee, and is hound to convey to the vendee the legal title, admits of no controversy. There was no intention in giving the receipt that the vendor should be discharged from Ms promise. It states that the money expressed therein, was received to apply on the contract. Whether the giving оf a receipt for the debt was effectual to confer the benefit intended, is a question of law, but it is clear, from the facts found, that the receipt was intended to operate as a forgiving and satisfactiоn of the plaintiff’s obligation under the contract, so as to leave the right of the plaintiff to á conveyаnce in force as if the debt had been paid. The case, therefore, Comes to this single question, viz., was thеre a valid gift of the debt to the plaintiff by her brother. The case of Gray v. Barton, (55 N. Y., 68), is a decisive authority for the plaintiff on this question. The plaintiff does not, in tMs case, seek the aid of the court to perfect an incomplеte gift. The gift of the debt was complete upon the execution of the receipt. The vendor’s purрose of giving the land has never been executed, only so far as it results from his’ giving the plaintiff the debt for the purсhase-money. The plaintiff’s obligation under the contract having been satisfied, the only unperformed stipulation remaining, is that of the vendor to convey the land, and tMs action is brought to enforce that stipulation.
*326 The language of Grover, J., in Gray v. Bаrton, answers the objection founded on want of consideration. He says, “the proof of want of cоnsideration for the receipt was annulled and avoided by the proof that it was given to consummate a gift of the debt.”
The judgment of the General Term should be affirmed, and judgment absolute for the plaintiff ordered on the stipulation.
All concur.
Order affirmed and judgment accordingly.