Gale v. Nixon — 6 Cow. 445

Majority

p. 445

Gale against Nixon and Nixon.

ALBANY,

Oct. 1826.

Headnote

On error from the C. P. of Tioga. The action in the court below was indebitatus assumpsit by the plaintiff against the defendants. The declaration contained counts © ⅜ for lands bargained and sold; for lands bargained,- sold, and possession given ; and lands sold and conveyed ; with the money counts. Plea, the general issue.

On the trial in the court below, the plaintiff relied on articles of agreement signed and sealed by the plaintiff only ; and delivered to, and accepted by the defendants, dated April 14ÍA, 1821. These articles purported to be by

Semite, that' the sale of lan.ds' *'SD®d and sealed by the vendor on-ired^tofXnd accepted^ by and which contaron the part of the lat-{®r’ apc°y'“⅛ considera tioa money, may be enforced against the latter by an action of assumpsit. >.

And where such a contract was recognized and ratified on the part of the vendees, by an1* endorsement under their hands and seals ; held, that this was a sufficient signing to take the case out of the statute of frauds.

Thé endorsement not containing, in itself, or amounting, when taken in connexion with the original contract, to a covenant to pay, and the vendor having tendered a conveyance, held, that he might maintain indebitatus assumpsit for the consideration money.

But if the endorsement had amounted to a covenant to pay, the action must have been covenant or debt.

7'he covenant by the vendor, was to convey within two years from the date ; and the contract purported to contain a covenant, on the part of the vendees, to pay on receiving the conveyance. The latter took immediate possession, pursuant to another covenant in the contract on the part of the vendor ; and by an arrangement between the parties and A., part of the premises were conveyed to the vendees by A., within the two yeurs, A. having title ; but the time had elapsed when the conveyance for the residue was tendered ; and : for that reason the vendees refused to receive the conveyance; yet, held, that the contract ; was not rescinded; and that the vendees were liable in indebitatus assumpsit for the consideration money.

To avoid this, the vendees should have re-delivered possession ; and rescinded the con-⅜ tract in toto.

To warrant an action of covenant, the contract must be sealed by the party or his attorney. A mere recognition of the contract, though under seal, will not sustain the action.

A written recognition of a contract, void by the statute of frauds, though after ⅜⅛ entered into, will make it binding*

p. 446

both parties; naming the plaintiff as of one part; and the defendants, W. & G. Nixon, as of the other. The plain* tiff, for the consideration of $300 to him paid, and of $500 to be paid, as therein after mentioned, covenanted to eon-r. / , ’ vey, within 2 years, at his own costs and charges, two described parcels of land, of 60 and 80 acres, to the defendants in fee; and the defendants covenanted to pay the plaintiff, on the execution of the conveyance, $500. It was also agreed, that the defendants might take immediate possession of the premises ; and continue so in possession, taking the profits, till the conveyance should be executed. On the articles, was an endorsement dated May 31sf, 1822, under the hand and seal of J. & W. Nixon, stating that they had, on the part of W. & G. Nixon, the defendants, with the consent of the plaintiff, entered into an arrangement with T. Astley, for the purchase of one of the described parcels, (the 80 acre lot,) and given their bond to Astley, for the balance on that lot, $391,42 ; and that they had taken Astley's bond to them for a deed ; and that they did thereby discharge the plaintiff from so much of his agreement as bound him to convey this described parcel. Afterwards, the defendants paid this balance to Ast-ley, who owned the 80 acre lot, and took a deed of him, within 2 years from the date of the articles. The payment to, and conveyance by Astley, were pursuant to the agreement and understanding of both the parties to this suit, who agreed that the payment of the $391,42 should apply on the articles between them. A few weeks after the date of the articles, the defendants took possession of both parcels; and remained in possession up to the time of the trial. The plaintiff had caused a deed with warranty to be tendered to the defendants, for the 60 acre lot, before suit brought in the court below; but more than two years from the date of the articles. This deed was produced ready for them, at the trial.

The defendants moved the court below for a nonsuit, on these grounds : 1. That the articles were not signed by the defendants. 2. They being sealed, the action should have been covenant. The contract of the plaintiff.

p. 447

not having been fulfilled, there was no express or implied promise to pay. 3. For the 80 acres, a deed was received from Astley, before the contract expired ; and the deed for the 60 acre lot was not tendered till after the contract had expired.

The motion was granted, and the plaintiff excepted.

E. Dana, for the plaintiff in error.

1. Part performance, as payment, and taking possession, removes the objection arising from the statute of frauds, though the vendor only sign the contract, if it be delivered to the purchaser. (Str. 783. 1 Com. on Contr. 80. 3 John. Cas. 65. 2 Caines, 120.) 2. The defendants, by the endorsement, ratified the original agreement. It was equivalent to signing. Yet, as it contained no express covenant to pay, covenant will not lie. Assumpsit is the proper action. 3. Jf the defendants had a right to rescind, they have not exercised that right. To do so, they should have offered to reinstate the plaintiff by a surrender of possession, and a conveyance of the 80 acres.

The plaintiff is without remedy, unless he can recover in this form of action. He cannot recover back the land conveyed.

A. Collins, contra.

The contract was within the statute of frauds, (1 R. L. 78, s. 10.) The signature endorsed was long after the date of the articles. If any action will lie, it is covenant. The covenant to pay was dependent. ( 10 John. 266 .) The tender of the deed at the day, was a condition precedent ; and the time having elapsed before the tender, all remedy was forfeited. The declaration was for lands sold and conveyed ; but the defendant never accepted a conveyance. There was, then, a variance between the declaration and proof. Acceptance of a deed is essential to its validity, (1 John. Cas. 114. 12 John. 418 .) No title having vested, there was nothing to raise an implied assumpsit as for lands sold. As-sumpsit will not lie for lands bargained and sold, but not conveyed. The plaintiff’s remedy is, to recover back the land.

p. 448

Curia, per

The plaintiff was nonsuif- ec¡ at t}je tn-ai . |jjs right to recover being objected to on three grounds :

1. That the contract was within the statute of frauds, pot being signed by the defendants. 2. That if it was a valid contract, it being sealed, the action should have been covenant. 3. That the deed not baying been tendered by the plaintiff, until after the time stipulated, and the eon-tract, therefore, not having been fulfilled on his part, there could be no implied promise, on the part of the defend¡ants, to pay.

The article of agreement contains a perfect contract between the parties. It specified particularly what was to be done by each party. It was sealed by the plaintiff, and delivered to the defendants, who took possession of the land under it ; and the only objection to it is, that it was not signed by the defendants.

It is not necessary, in this case, to decide whether the action could be sustained merely upon the signature of the plaintiff to the contract, and the acceptance of it, together with the possession of the land, by the defendants, though I am inclined to think that it could. (I Eq. Cas. Abr. 21, pl. 10. 1 Powell on Cont. 286. Ballard v. Walk er, 3 John. Cas. 60. Roget v. Merritt & Clapp, 2 Caines, 120, per Spencer, J. 1 Fonbl. 165, 166.)

But the indorsement on the back of the contract, signed by both of the defendants, is clearly sufficient to take the case out of the statute, although made at a subsequent period. It is a fpll and complete recognition of the Contract. It releases the plaintiff from the performance of one part of it. It is not necessary that the identical agree-jnent should be signed ; but if it is acknowledged by any other instrument duly signed, it is sufficient. (Rob. on Frauds, 121. Welford v. Beazly, 3 Atk. 503. 3 Bro. Ch. Rep. 318. 1 Ves. 6. 9 Ves. 355. 1 Com. on Contr. 109, 110.)

Assumpsit was the proper form of action. Covenant will lie only where the instrument is actually signed and sealed by the party, or by his authority. A recognition

p. 449

bf the contract, though in writing and under~seal, will not make it a covenant. If the instrument bj which the original contract is admitted, contain, in itself, a specification of the terms, and consideration of the contract, an action perhaps might be sustained upon that; and in such case, if it was under seal, the action must be either debt or covenant.

Under the circumstances of this case, it is not material that the deed was not tendered on the day fixed by the contract. The defendants were in possession of the land. They had, by a mutual arrangement between the parties, taken a deed from Astley for the largest parcel. They do not offer to deliver up possession of the land, and rescind the contract ; but seek to retain the land, and avoid paying the stipulated price. This they eannot do. They must either avoid the contract in toto, or else perform.

The plaintiff was improperly nonsuited, and the judgment must be reversed.

Judgment reversed.