Hickey v. Dole

29 A. 792 | N.H. | 1890

The writing signed by Soule is a valid contract, and if it had been signed by Dole, the statute of frauds would not have been a defence. Letters written by Dole to the plaintiff refer to and recognize the contract signed by Soule, and the plaintiff's "right to redeem the property." They contain the substance of so much of that contract as is material in this case, and they are as effective as his signing the formal agreement would have been. Brown v. Whipple, 58 N.H. 229; Webster v. Clark, 60 N.H. 36; Rafferty v. Lougee,63 N.H. 54; Barrell v. Joy, 16 Mass. 221, 223; Urann v. Coates,109 Mass. 581, 584; Kingsbury v. Burnside, 58 Ill. 310; Ryan v. U.S.,136 U.S. 68, 83; Forster v. Hale, 3 Ves. 696, 708, 709 — S.C., 5 Ves. 308, 315; Browne St. of Frauds, ss. 7, 98, 99, 346, 346 b. They prove the plaintiff's "right to redeem" at least one half of the Stark mill property; and as one half is all he claims, it is not necessary to inquire whether, as against Dole, the letters show the plaintiff entitled to more than half. His "right to redeem," established against Dole by the letters, is his right, established by the writing signed by Soule, to have half of the property when he pays half of the advances made by Dole and Soule. Both descriptions of this right mean that the amount to be paid by him is to be ascertained by such an equitable accounting as attends a mortgagor's exercise of his right of redemption. On such an accounting the referee has found a balance due the plaintiff. When he receives that balance and half of the land, the other half of the land will be the profit of those who prevented a foreclosure. The plaintiff's right to specific performance does not depend upon the mutuality of that remedy. Eckstein v. Downing,64 N.H. 248.

Upon the facts found, it cannot be held as matter of law that the suit was not seasonably brought. The plaintiff is entitled to a conveyance from Dole, and from Stuart who became a grantee of some of Soule's heirs with notice of the plaintiff's rights. Soule's administrator was properly joined as a defendant. Whatever may be the several obligations of the defendants to contribute to the payment of the balance due the plaintiff, Soule's administrator and heirs may well be made defendants for the purpose of a decree that will leave no part of the plaintiff's land title open to controversy or doubt. He is not bound to rely upon the evidence relating to Stuart's acquisition of a part or the whole of Soule's title.

Decree for the plaintiff.

BINGHAM, J., did not sit: the others concurred.