35 Barb. 151 | N.Y. Sup. Ct. | 1861
Parol testimony was probably admitted to show what debts of Aaron Hasbrouck the defendant agreed to pay; in other words, for what consideration, and in what
The real and only important question in the case is, whether the agreement of the defendant was void for want of consideration, or as being within the statute of frauds. And it presents the question whether a parol promise of a party, to whom a conveyance of lands is made for the purpose, to pay (in addition to certain debts owing by the grantor to such party) certain debts of the grantor owing to third persons, is valid and obligatory upon the promissor, without the concurrence or consent of the creditors being given to the arrangement, and without, so far as appears, any suspension or extinguishment of the claims of those creditors, as against the original debtor.
1. It is of course clear that if the payments were made at the time of the transaction, whether made directly to the grantor, or, by his direction, to his creditors, no question could arise in regard to it. Nor could any arise if such payments were subsequently made by the grantee of the lands, in accordance with the agreement made at the time, between the grantor and the grantee, before the rights of any third persons intervened.
2. If the payments were not in fact made, but only agreed to be made at a future time, by an agreement in writing made concurrently with the conveyance of the land, such an agreement, as between the parties thereto, would certainly be a lawful agreement and founded upon a legal and valid consideration.
3. Such an agreement in regard to the application of the purchase money, I apprehend, the grantor would not have a
4. Nor would it vary the case, in my opinion, that the consent of the creditors to such a mode of paying their debts was not obtained, nor that their debts were not extinguished. The contract still remains a legal and valid one between the parties thereto.
5. The agreement may also be by parol. It is not within the statute of frauds ; for it is not an agreement to answer for the debt, default or miscarriage of another party, but an agreement to pay the promissor’s own debt, then contracted, (for the purchase of the lands,) in a particular way agreeable to his creditor, the grantor, to wit, by paying certain debts which the grantor owed to third persons. It is only a particular mode of paying the money, and for aught that I see, it may as well be paid in that way, as in paying debts owing by the grantor to the grantee then due or thereafter to fall due. (Brown v. Curtiss, 2 Comst. 225. Cardell v. McNiel, 21 N. Y. R. 336. Mallory v. Gillett, Id. 412, 419, 423. Nelson v. Boynton, 3 Metc. 396-400. Farley v. Cleveland, 4 Cowen, 432, 439. Elwood v. Monk, 5 Wend. 235. Meech v. Smith, 7 id. 315. Barker v. Bucklin, 2 Den. 45. Hale v. Boardman, 27 Barb. 82.)
6. I think also, in this case, that the creditors of Aaron Hasbrouck had such an interest in the appropriation of the fund in question, to wit, the purchase money of the farm, that they could bring an action in their own names to recover their debts of the defendant; and that this is so, whether they knew of this arrangement at the time, or subsequently assented to it, or required it to be done at any future period.
The purchase money may, I think, be regarded as a fund intended directly for the benefit of the specified creditors of Aaron Hasbrouck; in which case the principle has been held to' apply, (Felton v. Dickinson, 10 Mass. Rep. 189; Berly v. Taylor, 5 Hill, 577; Gold v. Phillips, 10 John. 412;
7. The subject is an interesting one, but not necessary to be further pursued. The doctrines here considered are discussed in these various aspects in two leading and very recent cases in the court of appeals. (Mallory v. Gillett, 21 N. Y. Rep. 412; and Lawrence v. Fox, 20 id. 268.)
I think it very clear that the agreement need not be in writing. It is therefore a lawful one. I think the weight of authority is in favor of the proposition that it may be enforced by the creditors for whose benefit the purchase money is appropriated; and that they may make their election to avail themselves of the benefit of the agreement at any time before the lawful application of the fund elsewhere. And that it is not competent for the grantor of the lands to revoke or countermand the appropriation when once made under a valid agreement between him and the grantee.
The result is that the judgment of the circuit court, entered on the report of the referee, should be affirmed.
The referee finds as a fact, that at the time of the sale of the farm, by Aaron Hasbrouck to Sarah, she agreed to pay certain debts of Aaron which made up the full price of the farm. And as there is sufficient evidence to support this finding, we cannot set it aside. This being so, the facts so found make the legal conclusion of the referee inevitable. There being a schedule of items which made up a
The judgment entered on the report of the referee should be affirmed.
Wright, J. concurred.
Judgment affirmed.
Wright, Gould and Hogeboom, Justices.]
