23 F. Cas. 1324 | U.S. Circuit Court for the District of Massachusetts | 1861
Some care is required in the examination of the allegations, setting forth the supposed grievances of the complainant, in order clearly and fully to understand the real nature of the claim presented in the bill of complaint. Confessedly it is not a bill to redeem, as is manifest from a single reading; and no pre-tence of the kind was set up at the argument. Neither the complainant nor his grantor had any interest, absolute or de-feasable, in the homestead farm, at the time the same was purchased by Horatio Leonard of the legal representatives of Will.am Rotch. Nothing of the kind is pretended; and, if the pretence were made, it could not be supported for a moment, as the bill of complaint alleges, and the whole evidence shows, that the title had then passed out of the mortgagor by foreclosure. Foreclosure of that mortgage gave the mortgagee a perfect title in fee-simple absolute, as it was prior in date to the one given to the complainant and his brother. Title to the homestead farm, therefore, was acquired by the respondent from those who owned the land
Much reliance is placed by the complainant upon the testimony of his father, who is his grantor of one half the interest claimed, as before explained. His testimony respecting the circumstances attending the purchase of the homestead farm from the heirs of William Roteh is very explicit, and is given at great length. He states, that he learned from Horatio Leonard and his father, during the pendency of the ejectment suit, that the heirs would sell the property for $2,500; that he and the complainant applied to his son-in-law to help them to the money; but he said he would not, unless his father would assist. Whereupon, the witness states, he applied to the father, and that he agreed to grant the assistance, if the heirs would take his notes on twelve months, and the witness and the complainant would pay them when they fell due; that he agreed to those terms. Speaking of the conversation, the witness states that it took place at the house of his son-in-law; that he and the father of his son-in-law were alone. “Nobody else (was) in the room, and the door was shut.’’ When he went away he remarked, that if the heirs would accept $2,500, and take his notes, and if the complainant and the witness would take care of the notes, he would give them, but that he must be secured on the land. His son-in-law came to him that evening, and told him that he and his father had had a conversation with one of the heirs upon the subject, and that it was agreed that his father should give his note for $2,200, and that he, the son-in-law, should give his note for $300, both payable in twelve months; and that the heirs should give a bond for a deed of quitclaim, on the payment of the notes. Confirmatory circumstances are then stated by the witness, corresponding substantially with the allegations in the bill of complaint; and, after concluding that relation, he adds that his son-in-law came back alone from the visit to the heirs, and gave him the information before stated, and said, that he would have the papers made all right, including a statement of what the agreement was between the witness and the father of his son-in-law. Directions, however, were given by the witness, to his son-in-law, to go to the office of his attorney, who had charge of the ejectment suit, and have the papers prepared; and in a day or two, at the request of his son-in-law, he went to the office of his attorney, and signed a deed, without reading it, or knowing what was in it, and went out, leaving the complainant there with his son-in-law and his attorney. In answer to another interrogatory, he states that it was agreed between him and Nehemiah Leonard, at the interview between them, in the house of his son-in-law, that he was to have a writing, to show what the understanding was; and he states that-the same thing was talked over between him and Nehemiah and Horatio together that same afternoon, and it was agreed that he should have such a writing. Particular mention is also made of a conversation between the complainant and Nehemiah Leonard, in which he states in substance and effect, that the respondent said that all he wanted was the money to meet the notes, and that he took hold of the transaction to help the complainant. Several other conversations with one or the other or both of these respondents are given by the witness, in which, as he states, they substantially admitted that he was to have the agreement for a conveyance. On cross-examination, he admitted that he suggested to the complainant to buy out the farm, and take the fight with the Leonards; and that he stated to him. at the same time, that he should be a witness for him, if he brought a suit. Circumstances of a confirmatory character are also adduced by the complainant; and they were earnestly urged upon the consideration of the court at the argument, and will be briefly noticed at the present time. Reference is made to the bill of sale of the personal property; but there is no evidence to show a delivery, or that one article of it ever went into the possession of the grantee; and the clear inference from the case is, that it was made for some other purpose. Certain witnesses also testify to various conversations with one or the other of the principal respondents; but there is not one of the conversations that has much tendency to prove the alleged agreement to give the bond or other written instrument, or which may not reasonably be explained as consistent
But suppose it were otherwise, and it were fully proved that Horatio Leonard, before and at the time he purchased the farm of the heirs of William Botch, made the agreement set forth in the bill of complaint; still it is insisted by the respondents that the complainant cannot prevail, because neither the agreement, which constitutes the foundation of the suit, nor any memorandum or note of it is in writing, signed by the party to be charged therewith. Gen. St. p. 527, c. 105, § 1; Id. p. 502, c. 100, § 19; Boyd v. Stone, 11 Mass. 342. They insist that the statute extends to any agreement by which rights already acquired in real estate, under a deed, are enlarged or qualified; that not only is an agreement to execute a mortgage invalid, without writing, but also that an agreement to make a defeasance to an absolute conveyance, or to convert a written mortgage into a conditional sale, or to foreclose a mortgage, even when the agreement is made by solicitors, in anticipation of a decree of court to the same effect, are also invalid, unless the promise, contract, or agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. Gen. St. 527; Browne, St. Frauds, p. 272, § 267. On the other hand, it is assumed by the complainant, that the decisions of the supreme court and of this circuit clearly take this case out of the operation of
Some of the evidence introduced to prove the oral agreement set forth in the bill of complaint has some tendency also to show that the complainant or his grantor may have a right to redeem the parcels of land, if any, included in the quitclaim deeds which were not embraced in the mortgage to William Botch. Should that suggestion be made, the answer to it is, that the bill of complaint is not one for redemption. Suit was brought upon the alleged oral agreement to give a bond or other written instrument, to convey upon certain conditions, and not for the redemption of those lands. Evidence was taken by both parties, in respect to the allegations in the bill of complaint; and the tender and demand made by the complainant had respect to the same matter of controversy. In view of the whole case, I am of the opinion that the complainant, upon the proofs exhibited, has shown no ground for relief; and the bill of complaint is accordingly dismissed with costs.