Van Alstine v. Wimple

5 Cow. 162 | N.Y. Sup. Ct. | 1825

Curia, per Sutherland, J.

So far as the agreement professed to bind the defendant to re-convey the land, upon being re-paid the $200 advanced by him, it was clearly within the statute of frauds, and void at law. It was a contract for the sale of lands and comes within the very words of the act. It has been repeatedly held, that if part of one entire contract be void under the statute of fraud,s, the whole is void; that the party shall not be permitted to separate the parts of an entire agreement, and recover on one part, the other being void : and this, although the part which was void, and could not have been enforced, has been actually performed. Thus, in Lord Lexington v. Clark & wife, (2 Ventr. 223,) the declaration stated, that Brady, the former husband of Mrs. Clarke, was tenant at will to the plaintiff, at an annual rent of £320; that at the time of his death, one-half year’s rent was due ; that Mrs. Clarke, while sole, before her second marriage, in consideration that the plaintiff would permit her to enjoy the premises until the next Lady-day, and permit her to remove certain posts, rails, &c. fixed on the premises by her husband, promised to pay the £160 in arrear, and also £260 more. The £160 were paid before suit brought; and it was held that this part of the agreement being void, as it was to pay the debt of another, and not in writing, the residue was void also, although, had it stood by itself, it might have been enforced. The same doctrine was held by Lord Kenyon, in Chater v. Beckett, (7 T. R. 197;) and by this Court, in Crawford v. Morrell, (8 John. 253.) The cases of Hall v. Shultz, (4 John. 240;) Sherrill v. Crosby, (14 id. 358;) Movan v. Hays, (1 John. Ch. Rep. 339 ;) Botsford v. Burr, (2 id. 405 ;) and Steere v. Steere, (5 id. 1;) have also some bearing upon this point.

But I am also inclined to think, that there was no consideration to support the promise of the defendant, to pay the plaintiff the $600 for the land; and that on this ground he is not entitled to recover. If the legal effect and character of the transaction be the same as though the defendant had been the purchaser at the sheriff’s sale, instead of Olcott, to whose rights he succeeded, which'appears to me to be the case, then it seems to me very clear, that the defendant’s agreement was without consideration. If the sheriff’s deed had been executed and delivered, it will at once be conceded that there would have been no consideration for the promise. And the fact that the naked fee remained in the plaintiff until the deed was executed, does not, in my judg ment, alter the case. (2 Caines, 63. 2 John. 248.) All his beneficial interest in the land was gone. No act or assent on his part was necessary to the consummation of the title of the purchaser. It was not in his power to prevent "it. The purchaser could, compel the sheriff, at any moment, to ' execute the deed.

Suppose the plaintiff, after the sale, and before the execution of the deed, (both being on the same day,) had conveyed the land in question to a third person; would his deed have passed either the legal estate, or any equitable interest to his grantee ? If not, how can any consideration to support the promise of the defendant be implied from the fact that, at the moment of making the promise, the naked fee remained in the plaintiff.

I am, therefore, of opinion that, on either of these grounds, the defendant is entitled to judgment. If the plaintiff has any remedy, it must be in Equity.

Judgment for the defendant.