Getman v. Getman

1 Barb. Ch. 499 | New York Court of Chancery | 1846

The Chancellor.

It is not pretended in this case that the defendants were to redeem the premises for the benefit of the judgment debtor, or of any person who had any right to redeem the same from the sheriff’s sale. The substance of the agreement, as stated in the bill, was that the defendants were to sell and convey the right which they should obtain, by the purchase from Van Alstyne, to the children of the judgment debtor, at any time within six years, for the price they should pay for the same, with the interest thereon. But there was no agreement on the part of the children, or by the mother in their behalf, that they should take the property and pay the amount advanced, or even the interest thereon. The alleged agreement had therefore no consideration to support it, even if it had been reduced to writing.

Again; I see nothing in the alleged agreement, considered either as a contract, or a trust, to take it out of the operation of the statute of frauds which was in force in 1825. As the complainants had no estate nor interest in the farm, the only way in which they could be benefitted by the purchase of the interest of Van Alstyne, by the defendants, was. through the medium of a resulting trust; or under an agreement of the defendants to sell and convey the premises to them, for the amount of the purchase money paid to Van Alstyne, with interest thereon. But to constitute a resulting trust, to be established by parol evidence, it is necessary that the consideration money for the purchase should belong to the cestui que trust, or should be advanced by some other person as a loan or a gift to him. It was upon the ground that the purchase was in reality made by tiie Boyds, and that the money paid to the grantor was in fact loaned to them by the person to whom the legal title was conveyed, that this court sustained the resulting trust in the case of Boyd v. McLean. (1 John. Ch. Rep. 582.) Chancellor Kent says, in that case, “ the ground upon which the claim of the plaintiffs rests, is that the $1500 which were paid to. T. Golden in 1807, as the consideration for the purchase of the premises, were the moneys of the plaintiffs, procured from the defendant as a loan; and that the defendant took the deed in his own name, by agreement, and became thereby the trustee for the plaintiffs.” In the present case, there is no pretence of a loan made by the defendants to the complainants ; nor was there any negotiation for the loan of money. There was no agreement, by any one, to pay the money to the defendants in any event; but, as if is stated in the complainants’ bill, it was a mere privilege of buying the premises, from the defendants, for the $371, and interest thereon, at any time within six years, if they should think proper to do so. In other words, the defendants agreed to sell the lands to the complainants at that price, subject, to the previous incumbrances, thereon, if they should elect to purchase the same. It was therefore a, contract to sell'land, oran interest in.land, within the intent and meaning of the ninth section of the statute of frauds. (1 R. >S. of 1813, p. 78.) This contract was alsp void, as being an agreement which was not to be performed within.one.year, from the making thereof. If parol agreements of this kind, in. favor of persons who .had no previops. interest in the land, can bp sustained, no .purchaser of. real estate will be safe; and all the benefits intended to be secured by the statute of frauds will be lost to the community. And the present case is also strongly illustrative of the danger of relying upon parol evidence to prove agreements of this description. For although several witnesses have testified upon the subject, no two of them agree in their statements as to what was said, or promised, or agreed to, by the defendants or either of them; and no one of them proves such an agreement or arrangement as these complainants have stated in their bill. Van Alstyne proves an agreement that one of the sons of the judgment debtor should be at liberty to redeem, for the benefit of the family; but within what time, or on what terms, he does not state. J. T. Getman, the judgment creditor and uncle of the complainants, says the defendant A. Getman told him if the boys, or any one of them, paid him the amount of the two mortgages and the amount of the bid, at any time within six years, he would give them the land. And this witness agreed that he would go to Van Alstyne and get him to sell the defendants his bid, if they would allow the boys to redeem on these terms. The mother of the complainants understood that all of her children were to have six years, or longer, to redeem the land in. Robert, the brother, testified that the defendant A. Getman applied to the mother for leave to redeem the land for her and her children, and to give them six or seven years to redeem the same: that he wanted C. Getman to go in with him: and she agreed to it, on condition that C. Getman should redeem it with him. And the defendant C. Getman, who was examined as a witness for his co-defendant, testified that Robert applied to him to assist him in redeeming the land, and he finally agreed to do so. But he says no time was fixed within which Robert was to pay the money, until after the arrangement with Van Alstyne was made. And then it was agreed that they should wait upon him as long as the person from whom they had borrowed the money would wait upon them; and that Robert subsequently declined paying the money when it became due, according to his agreement with the witness. It appears by the testimony of another witness also, who was the surety for the money raised to make the tender, that Caspar Getman, one of the complainants, then understood that the bargain had been, made with Robert; and that the money was to be tendered to enable him to bring the suit. This was previous to 1830, when the defendant A. Getman compromised the claim of Robert under the agreement, and paid him a considerable sum to prevent the necessity of a litigation with him. Independent of the legal objection to parol evidence to prove the alleged contract with these complainants, the testimony does not establish such an agreement as is set up in this bill; and is wholly insufficient to overthrow the positive denial in the answer.

These several objections being fatal to the claim of the complainants, it is unnecessary for me to examine the question whether their rights, if they ever had any, were barred by the statute of limitations. The decree appealed from is not erroneous ; and it must be affirmed with costs.