30 Abb. N. Cas. 443 | N.Y. Sup. Ct. | 1893
The defendants are the heirs-at-law and the personal representative of Isaac S. Purdy. In the latter part of the year 1874, Isaac S. Purdy owned a bond and mortgage made by the plaintiff dated April 10, 1872, to secure the payment of $7,500 in five years with annual interest. The interest was entirely unpaid and the plaintiff was not able to pay it, nor was there any likelihood that she would be able to pay the principal sum when it should become due. The land covered by the mortgage was 153 acres and it was worth something over $9,000. The interest due was $1,050, and the total amount of the incumbrance due and to become due was something more than $8,900. There was more or less valuable timber on the farm, which the plaintiff had begun to cut and take away, and to prevent this, and at the same time to collect what was due upon his bond, Isaac S. Purdy began an action.
During the pendency of that action the transaction occurred which is the foundation of this suit.
It is stated by the daughter of the plaintiff, who was then a girl of 12 years, that Mr. Purdy came to her mother’s house and said to her substantially that if the farm did not bring at the foreclosure sale a sum sufficient to pay the amount due on the mortgage and the costs and something over for her, he would bid it off and try to sell it for as good a price as could be got, and after paying the mortgage debt and costs and expenses would give her what was left. This was by parol and not in writing. It does not appear that Mrs. Traver paid anything to Purdy for this promise, or that she either took any action or forbore to take any action in reliance upon it. It is true she put in no defense to the action, but then there is no claim
The plaintiff’s case then stands upon a mere verbal promise to hold this farm for the benefit of the plaintiff in a certain event, which has not occurred. There was no fraud or estoppel; no consideration ; no relation of trust or confidence ; no part performance ; no act done or forborne by the plaintiff which puts her in any worse con
There is nothing in the facts of this case to bring it within that class of cases of which Ryan v. Dox (34 N. Y. 307) constitutes an example. The whole transaction shows a mere verbal promise to buy land and hold it for the benefit of the plaintiff, of which it has been said that in order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than the mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated (Pomeroy, Eq., sec. 1056). The facts of the case bring it within the rule of Wheeler v. Reynolds (66 N. Y. 227). See also Dollar
But the plaintiff insists that the defendant, not having pleaded the statute of frauds, is not entitled to its protection. The statute says that no interest in lands nor any trusts over or concerning lands shall be created or declared unless by writing (2 R. S. 134, sec. 6). In the courts of equity it had always been held that' when an action to compel the specific performance of a contract to convey lands or to enforce a trust concerning them had been brought, the bill or complaint need not set out a writing (Bliss on Code Pl., sec. 353). If the defendant answered, admitting the contract or not denying it, he must set up the statute of frauds if he relied upon that as a defense, if he did not set up that defense, the contract being established by the pleadings, there was no legal dispute as to its existence, and in that case unless the defendant claimed the protection of the statute, no question could arise upon it (Cozine v. Graham, 2 Paige, 177; Duffy v. O’Donovan (46 N. Y. 223, 226). In such a case it was necessary t,o plead the statute. But if the contract was denied so that the plaintiff was put to his proof, then he must make such proof as the statute required, and if the statute required a writing, he must prove his contract by the writing or fail in his suit (Cozine v. Graham, supra; Livingston v. Smith, 14 How. Pr. 490 ; Haight v. Child, 34 Barb. 186 ; Marston v. Swett, 66 N. Y. 207). This happens, not because the defendant insists upon the statute, but because the law requires written evidence to make out the cause of action. The denial by the defendant puts the plaintiff here to her proof, and when the proof made is not such as the law requires, the defendant, who denies the existence of any contract, is in a situation to insist that there is none.
The case of Porter v. Wormser (94 N. Y. 431), cited by plaintiff, was, as appears by the remarks of the judge at page 450, one of the class where the party insisting on
It may be said, too, that besides the insuperable barrier of the statute, the plaintiff’s case is fatally defective in that no consideration is shown to have moved from her for the promise of Purdy. This fact is fatal to her cause of action (Pomeroy Eq. sec. 1293). But it is not necessary to enlarge upon this point. There is no view of the case in which she could be entitled to judgment.
Judgment appealed from affirmed with costs upon the reasons stated in the opinion of Rumsey, ]., at special term.
Argued before Lewis, Bradley and Haight, J.J.