Winter v. Livingston

Headnote

A-executesicerr tain prcupissory ^orares6/aodd, tíeKc«eíwírhe?B5 Seyedto-R.’uSftenuhat' b^qh ííeBoae™sehouíd re.conv’ey the laud; the notes and b|rshaPvaing oi ownership on the land,by sell-not support an action on ,the-notes, there be-Consideration-°£ and the agreement being void meDte.ofn"pthe ferfedsotoxonl exeTeisiug'Cc'il faMelSii'd jadaroSpiSi!

THIS was an action, of assumpsit on three promissory notes, ‘ ■ i j. ? ma¿e by the defendant in- favour of the plaintiff, dated Jzme 1st,. 1803,. one ¿payable 11 months .after date for 10,000 dollars, one payable 23 months after.-date for 5,000 dollars, and the other 3-5 months after date for 7,549 dollars-and 7 cents. The cause was tried .-at'the, New-York sittings, in April, 1815, before Mr. J. rr -ar -' > ' - ‘ ’ ’ VCLKl JMieSS, ' • , * :

The due execution of the notes haying been admitted, the defendant produced,, in. evidence,' a. certain instrument executed ‘ , . ... . '. . .... ' ' plamtifi, whichwas-as iollows ;.,

« Know all men by these presents,-that I; Joseph Winter, of % /. *■ \ - ' y- 7 • * ■■■ 3 • && city of New-York, Esq., for myself,v&e;,. do. covenant and agre¿ to, and'with EdwardLivingston, of the same place, esquire, that, provided he,, the-said Edward Livingston, shall Veil and truly pay to me, &c„ tiie full amount of three several promissory notes, (describing them, being the-notes, above .mentioned,j)that then, and in such ease, and. not otherwise, :J will convey to the said Edward,Livingston,-and his heirs, in fee,simple, átractqf land-'this day.conveyed to me by Thomas Mdule, of the.city .of Mew- York,, being the -residue of a tract of land granted to, him by patent, dated, &c., after deducting 20,078 acres, conveyed, &c., which residue is said to contain 25,000 acres; but it is hereby expressly declared to be-the- intent of the parties hereto, that if ‘the spid several notes,- or either of them, shall not be paid at the several times when they, or either of them, ought to be paid,', that then this . covenant shall be void and -of no effect, And it is also agreed,: that all such sums of money as shall be received for sales, of the said lands by settlers, by an agent to be appointed, jointly, -by Joseph Winter, Edward Livingston, and Thomas Áíaiifej the land is mortgaged, by J. Winter,)

shall be credited on Winter’s bonds and mortgage tó Maulé, and on Edward Livingston’s notes above recited. The lands, on the payment of the notes, to be conveyed free from incu.mbrance created by Joseph Winter, or any one claiming under him. In witness,” &c. Signed/. Winter, and dated the 11th of July, 1803.

It appeared that Livingston, the defendant, being indebted to Maulé in a large sum of money, and Maulé holding, for the defendant’s use, a tract of land on lake Champlain, (to which land the defendant was entitled, but the patent had been taken out in Maúle’s name,) it was agreed between the defendant and plaintiff, that the plaintiff should become responsible to Maulé for the defendant’s debt, on his receiving a conveyance from Maulé of the said tract, but that the defendant should have a reconveyance, on his paying to the plaintiff the sum of 3,125 dollars over and above the sum due to Maúle. The agreement, being the one above stated, was reduced to writing, and Winter gave his obligations to Maulé for the sum so due, with interest, payable in six, twelve, twenty-four, and thirty-six months, and the defendant executed, and delivered to the plaintiff, the notes on which the action was brought, which fell due, except the first, each one month prior to the time fixed for the payment of the several sums to Maulé. On the 11th of August, 1803, the plaintiff and defendant appointed George Lyon their joint agent, to contract for the sale of the land, who removed to, and resided upon or near the land, until 1807. The contracts with the settlers were made in the joint names of Winder and Livingston. In October, 1804, the plaintiff himself went on the land, and, whilst there, cancelled the contracts made by the agent in the joint names of Winter and Livingston, and gave deeds and tools mortgages for the land conveyed, in his own name, and from that time held himself out, and acted as the sole proprietor of the land, and oil the 13th of March, 1807, conveyed large portions of the tract to two different persons, and assigned them thé bonds and mortgages which had been taken on the sale of parcels of the land included in their deeds. The judge thinking that the consideration for the notes had failed, the plaintiff was nonsuited, and it was now moved to set aside the nonsuit.