10 Conn. 192 | Conn. | 1834
1. Before considering the questions arising under the statute of frauds, it will be proper to consider a preliminary one, growing. out of an alleged material alteration of the note or memorandum of sale, which is the foundation of this action. The plaintiff, in his declaration, charges the defendant as the highest bidder at auction for the estate therein described, and as such the purchaser of it. The memorandum or sale note was made by the auctioneer, agent as well of ven-dee as vendor. It was claimed, by the defendant, that the words “ sales at auction, &th March, 1826,” standing as a caption over a list of property sold, in which is mentioned the
Whether the alteration in the memorandum, if material, was made by the plaintiff or a stranger, does not appear.
It is said in Pigot's case, 11 Co. Rep. 27. and also in Markham v. Gonaston, Cro. Eliz. 626. that “ when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, erasing, or by drawing a pen through a line, or through the midst of any material word, the deed thereby becomes void.” This doctrine, not without good reason, has been supposed to have been derived from the ancient technical forms of pleading in cases of deeds, and from principles applicable to proferís. Reed v. Brookman, 3 Term Rep. 151. Masters v. Miller, 4 Term Rep. 321. But whatever may have been the origin of this principle, it has been much relaxed, if net entirely subverted, in later times, so far as it extends to the acts of strangers. As early as the reign of Car. 2. it was decided, that a deed was not made void, the seal of which had been torn off by a little boy. Palm. 413. Before the case of Read v. Brookman, 3 Term Rep. 151. it was uncertain how far a proferí could be dispensed with, in a court of law ; and in that case, it was, for the first time, settled, that the loss or destruction of a deed would excuse a proferí; and that a resort to a court of equity, in such cases, was not necessary. More recently, it has been holden, that an alteration of a written instrument, by mistake, will not defeat it. Chitty on Cont. 298. Raper v. Birkbeck & al., 15 East 17. Wilkinson & al. v. Johnson & al. 3 Barn. Cres. 428. (10 Serg. & Lowb. 140.) In the case of Henfree v. Bromley, 6 East 310. the court of King's Bench decided, that where an umpire, after the expiration of his power, had altered an award in a material part, such award was not thereby rendered void, but was good as before the alteration. In the case of Jackson d. Malin v. Malin, 15 Johns. Rep. 293. it is said, by Platt, J. “ that a material alteration, though made by a stranger, without the privity of the party claiming under it, renders the deed void, is
2. But the addition made to this memorandum is an immaterial one: the meaning of the paper is not altered thereby. At the bottom of the leaf or page, on which the addition appears, is this original entry : “ Auct. 6th March, 1826.” The addition is nothing more than a repetition of this entry ; and, of course, immaterial. Waugh & ux. v. Bussell, 5 Taun. 707.
3. The principal question, in this case, arises upon the sufficiency of the memorandum of sale; and whether it is good within the statute of frauds, to charge the defendant as the purchaser of the estate, for the price of which this action is broughtv The general rule of law, on this subject, is not uncertain. The note or memorandum of sale, required by the statute, must state the contract with such certainty, that its essentials can be known from the memorandum itself, without the aid of parol proof, or by a reference contained therein to some other writing or thing certain ; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement. But it is not necessary that the consideration should appear; nor is the form of :he note, nor the place of signature, material. 1 Kent’s Com. 402. 2 Stark. Ev. 603. Roberts on Frauds 110. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 272. Hinde v. Whitehouse, 7 East 558. Boydell v. Drummond, 11 East 142. Abeel v. Radcliff, 13 Johns. Rep. 297. Barry v.
It is agreed, that the memorandum in question was made by the auctioneer, the agent of both the parties; and to its sufficiency the defendant objects, that it does not sufficiently describe the estate sold. The property sold was Philo Bald-icin's right in Donald Baldwin's estate. Here is reasonable certainty. Many of the quit-claim deeds in common use in this state, are not more certain in description ; and, I think, there could be no doubt but a deed from Philo Baldwin to this defendant, containing only the same words of description, would be effectual to transfer all his right in the estate of Donald Baldwin. It might be necessary, in such case, as it frequently is, in others, where exactness of description is not introduced, to refer to other certain facts to ascertain the precise location of the estate conveyed, and the amount of the grantor’s interest in it; and parol evidence will be admitted to give effect to such a deed, by applying it to its proper subject matter. 3 Stark. Ev. 1621. Johnson v. Ronalds, admr. 4 Munf. 77. Jackson d. Van Vechten & al. v. Sill, 11 Johns. Rep. 201. Doolittle v. Blakeslee, 4 Day 265. Barry v. Coombe, 1 Peters 640. This objection, therefore, cannot be sustained.
But another objection made by the defendant, I think, is available to defeat this action. The memorandum does not disclose the name of the vendor ; at least, it cannot be. inferred, by any reasonable latitude of construction, that James Nichols was the vendor of the estate sold. And whether the book offered in evidence be examined without or within, this fact does not appear. It is not pretended, that the estate was owned or sold by more than one person : was that person James Nichols ? His name appears but twice connected with this book or memorandum; and in neither instance as vendor. On the cover of the book, it is written — “ James Nichols' memorandum of Philo Baldwin's property received by assignment.” Nichols does not here appear as the owner, or vendor of the estate ; but on the contrary, the property is said to be Philo Baldwin's. On opening the book, we see this
And because this note or memorandum is not, in this respect, a compliance with the requirements of the statute of frauds and perjuries, so as to charge the defendant as a purchaser of an interest in land, I am of opinion, that a new trial should be granted.
New trial to be granted.