28 Vt. 358 | Vt. | 1856
The opinion of the court was delivered, at the circuit session in June, by
We p erceive no obj eciion s to the plaintiffs’ r eco very in this case, on the ground that the defendant, in purchasing the pew, was acting as agent, under a resolution of the Baptist society, to repair and remodel their meeting-house. The defendant did not contract in the name of the society, nor have the plaintiffs any right to call on them for payment of this claim. By the express agreement of these parties, the pew was to be transferred to the defendant, and he personally agreed to pay the stipulated price. The purchase and the responsibility of payment, was assumed by the defendant in his individual capacity. If any legal liability is created by that contract, we think it rests on the defendant. Simonds v. Heard, 23 Pick, 125.
A more serious question arises in this case, whether this contract is rendered void by the statute of frauds. The case of Kellogg v. Dickinson, 18 Vt. 266, fully establishes the legal rights of the owner of a pew; that he has a property in it which partakes of the character of real estate, and that an action at law can be sustained against any one who unlawfully disturbs him in its possession and use. In the case of Baptist Church s. Bigelow, 16 Wend. 28, it was held, that the interest of a party in a pew, is an interest in real estate, and comes within the statute of frauds. The same doctrine is sustained by Ch. Kent ; 3 Kent’s Com. 489. It seems to be well settled by the authorities, that the plaintiffs contract to transfer their pew to the defendant, was one for the sale of some interest in real estate, which the statute requires should be re
In this country, to a great extent, the decisions upon this subject have been otherwise. In the case of Bowen v. Bell, 20 Johns. 338, it was held that an action of assumpsit could be sustained to recover the stipulated price, for land which had been transferred, and of which the defendant had taken possession, and that the contract for the payment of the money was not within the statute of frauds. Woodworth, J., observed that “it is not a case within the statute of frauds. The contract was perfected by giving the deed. The claim now is to pay the value. The action is not on an contract for the sale of lands, or any interest in lands, although it
In the case of Wilkinson v. Scott, 17 Mass. 249, it was held, that an action lies to recover part of the consideration for the conveyance ' of real estate, which, by mistake, had not been paid. Parker, Ch. J., observed that “ it is not a case within the statute of frauds, because it is not a contract for the sale of lands. That contract was executed and finished by the deed. This is only a demand for money arising out of that contract.” The same doctrine was held in the case of Pomeroy v. Winship, 12 Mass. 523; Davenport v. Mason, 15 Mass. 85; Brackett v. Evans, 1 Cush. 79 ; Preble v. Baldwin, 6 Cush. 554. In the last case, Wilde, J., observed,_ “ this action is founded on a parol contract, never in any part reduced to writing, but the deed was made in pursuance of that contract, and it is as binding and valid a contract, as if it had been reduced to writing.”
In this state the same doctrine has been recognized and sustained. In the case of Hibbard v. Whitney, 13 Vt. 21, an action was brought to recover damages for the non-performance of a parol contract to convey lands. The court held that the case was clearly within the statute, and that part performance was a ground only for equitable relief. It was, however, observed, “if this were an action to recover the price of land, agreed to be paid in money, when it was admitted the land had been conveyed, and the only controversy was about the payment of the price in money, or in any other mode, not within the statute of frauds, the action would Well lie. The same principle,” the court observed, “ has been before recognized by this court. In such a case, all that part of the contract,
We are satisfied, also, that the case shows a sufficient performance of the contract by the plaintiffs, to entitle them to recover the price of the pew. The deed was offered to the defendant before the commencement of this action, though not until several months after its execution had been requested. The delay of that matter for a season, was in pursuance of a mutual understanding. In the mean time, the defendant took the possession and control of the property, and has entirely destroyed its identity. He has been placed in the same situation, and in the enjoyment of all the rights he would have had, if the deed had been executed. It is not for him, under those circumstances, to refuse to accept the deed, and pay for the property he has taken, particularly as the defendant at no time had repudiated the purchase, in season to enable the plaintiffs to protect their rights ; and no pretence was made, that any injury or inconvenience had been sustained, in consequence of that delay. The plaintiffs can sustain no action of trespass for taking and destroying the pew; the contract of sale will prevent that, and, in fact, they have lost their property and are remediless, unless this remedy is open to them. We think the plaintiffs are entitled to recover the stipulated price of the pew.
The judgment of the county court must be reversed, and the case remanded.