Bogert v. Perry — 17 Johns. 351

Majority

p. 277

Herman H. Bogert, appellant, against Samuel Perry, Asa Smith, & John Van Tuyl, respondents.

Headnote

A mere chose ñot^be” taken a“<J ?°M on <*-

section oHhe stat“¿s.0 to. ⅛’ 727. § 47.) retd ⅛,, against the cestui<pieuse,oc applies on/y^td those fraudulent or eovenous trusts, in which therestui que use, or cestui que trust, has the whole beneficial interest in the land, and the trustee the mere naked or formal legal title.

. It is not applicable to a case where one person enters into a contract for the sale and conveyance of ..land to another, and the vendee pays part of the consideration, and enters into possession of the land, but neglects to pay the residue of the purchase money; for the vendor is not seised to the use of the vendee until the whole consideration is paid, and the vendee, has only a mere equitable interest, on which a judgment at law is not a lien, nor can it be sold under an execution,

A IT HAL from the Court of Chancery. John Atkinson, being seised in fee of lot No. 98, in the township of Junius, on the 4th of June, 1804, by a written contract, agreed to sell to Lewis Birdsall, parts of the lot, or about 296 acres, at four dollars per acre; 400 dollars, part of the purchase money, to bo paid down, and the residue in three annual instalments; a. deed to be given to the purchaser, on payment of the second instalment, and a mortgage to be given by him to secure the residue of the purchase money. Birdsall paid A. the 400 dollars, and went into immediate possession of the land, and afterwards paid A. 172 dollars. He neglected to pay the residue, and after about two years, he contracted *to sell the land to Smith, one of the respondents. S. agreed to pay the balance due upon the contract to A.; and S., thereupon, 1 } r 7

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entered into possession of the land, erected a dwelling-house thereon, and made other large and valuable improvements. On the 19th of October, 1818, a judgment was docketed in the Supreme Court, in favor of R. Harison, for 450 dollars debt, against Smith. In April or May, 1809, Smith contracted to sell 200 acres of the land to the respondent Perry, for above 2,000 dollars, who agreed to pay the balance due to A., and to pay the residue to S, when all judgments against the premises are settled; and gave his note to. Smith for 885 dollars, payable accordingly. The bill charged that Perry, when he so purchased of Smith, had full knowledge of Harison’s judgment. But P., in his answer, denied that he had any knowledge of it until after he purchased of Smith, and entered in possession of the land ; but the allegation in the bill appears to have been supported by two witnesses. Soon after this purchase, Perry purchased of Birdsall his contract with A., which had become forfeited, and surrendered it up to A. on the 28th of May, 1809. In July following, P. having paid A. I,050 dollars, the balance due on the contract, received from him a conveyance in fee for the 296 acres of land, the legal title having remained in A. until this conveyance.

On the 25th of October, 1808, a test ji. fa. was issued on II.’s judgment against the property of Smith; and Birdsall, who was then sheriff of Seneca, sold the 200 acres at public auction, to the plaintiff, Bogert, the highest bidder, for 30 dollars, and executed a deed to him, under the judgment and execution, on the 1st of August, 1809. On the 18th of September following, the plaintiff tendered to P. 1,063 dollars and 40 cents, in full of the money P. had paid to A., and demanded a deed from him.

On the 9th of May, 1811, Perry sold to the respondent Van Tuyl the whole 300 acres, for 5,000 dollars, of which 1,000 dollars was paid down, and the residue made payable in future instalments. The bill alleged that Van Tuyl purchased with full knowledge of all the facts above stated ; but this was denied by him, in his answer, and there was no proof of the allegation. On the 26th of July, 1811, the #plaintiff tendered to Van Tuyl, 1,215 dollars, and demanded a deed for the 200 acres, which was refused.

The chancellor, in June, 1814, being of opinion that the plaintiff was not entitled to call on the defendant, Perry, to account for the amount of the sale to Van Tuyl, dismissed the bill with costs.

For the reasons of the decree, which were assigned by the chancellor, vide 1 Johns. Ch. Rep. 52 . 57.

E. Williams and Henry, for the appellant.

They cited Sand, on Uses, 188, 3 89, 190. 192. 2 Vernon, 585. 1 Johns. Ch. Rep. 46 . 2 P. Wms. 736. 1 Eq. Cas. Abr. 384. 1 P. Wms. 278. 1 Gaines’s Cas. in Error, 47. 50, 51. 53. 57.

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65, 66. 10 Johns. Rep. 223 . 293. 3 Johns. Rep. 216 . 1 N. R. L. 74. 1 Rev. Stat. 727. 500. 2 Powel on Mart. 615, 616. Stat. Rich. III. and 29 Car. 2. 1 Bro. C. C. 331. 2 Bac. Abr. 350. Ex. (C. 2.) 13 Edw. I. 4 Cota. Dig. 132 Ex-edition, (C, 14.) 2 Atk. 107. 1 Vesey, Jim. 434. Sugd. Vend. 120, 121. 2 Fonb. Eq. 143, and notes. Sugd. Vend. 484. 1 Atk. 384. 2 Atk. 630. 3 P. i I ins. 307.

Van Vechten, for the respondents,

cited Sanders on Uses, 168. Shep. Touchst. 505. 1 Fonbl. Eq. B. 1. ch. 5. s. 7. n. 6, 2 Embl. B. 2. ch. 2. p. 29. n. 3. s. 2. 2 Bro. Ch. Cas. 337. 5 Johns. Rep. 345 . 8 East Rep. 467. 4 Dow’s Rep. 230. 504. 4 Johns. Rep. 42 . 7 Johns. Rep. 292 .

The single question in this case is, whether Smith had such an interest in the land contracted for with Birdsall, and which the latter had contracted for with Atkinson, as was liable to be sold on execution, or as was bound by the judgment in favor of Harison 1 If he had not, then there is an end of all the other points raised by the appellant; for his right to relief depends entirely upon the legal effect of Harison s judgment on the interest which Smith had in these lands. It is well settled, that a mere chose in action cannot be levied on and sold by execution. ( 4 Johns. Rep. 96 . 9 Johns. Rep. 42 .)

#It is true, that since the statute of 27 Hen. 8 . ch. 10. the cestui que use is the real owner of the estate, and his interest is bound by a judgment, and may be sold on execution ; and our statute concerning uses, (1 N. R. L. 72. 1 Rev. Stat. 727. ⅝ 47.) contains the provisions of the British statutes of 19 Ih n. 7. ch. 15. 27 Hen. 8 . ch. 10. and 29 Car. 2. ch. 3. sec. 10. But it is insisted, that the fourth section of our statute concerning uses, authorizes the sale which took place under Harison’s judgment and execution, and that the appellant, as the purchaser, became vested with all the rights of Smith as a cestui que trust in the lands articled for with Atkinson.

This section provides, “ that the sheriff, upon any writ or precept upon any judgment, may do, make, and deliver execution unto the party suing, of all such lands, Ac., as any other person is seized or possessed, to the use, or in trust for him, against whom execution is so sued, like as the sheriff' might if the party against whom execution shall be so sued had been seised of such lands, of such estate ás he is seised of, in the use or trust at the time of the execution sued; and such lands, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged of all incumbrances of such persons as are so seised and possessed, to the use, or in trust, for the person against whom such execution is sued.” This is the substance of the section. It is very certain, that it does

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not apply to this case; for Atkinson never was seised to the use> or ⅛ trust> either of Birdsall or Smith. The statute in-tended to subject to execution the real estate or hereditaments of a person having the entire interest therein, but which was nominally and formally vested in another person. If Atkinson ⅛ to be considered as seised, in the first instance, in trust for Birdsall, and after the contract between Birdsall and Smith, for the latter, then the appellant would, by force of the statute, hold the land purchased on execution, freed and discharged from the incumbrance of Atkinson’s claim for the consideration money of the purchase by Birdsall. And in such case, Atkinson would be devested of that portion of the consideration which remained unpaid. This construction of the statute, it is evident, would produce most mischievous consequences, as regards every person *who should contract to sell real estate, and receive any portion of the consideration money. The Vendor does not become seised to the use or in trust for the vendee, until the whole consideration money is paid ; he retains the title to the estate, and the use in it, to himself, until he has completely satisfied the consideration ; and it is one of the requisites to the execution of a use under the statute, that the estate out of which the use arises, should vest in the cestui que use. (2 Fonh. B. 2. ch. 6. sec. 1. and Sand, on Uses, 168.) Here it could not vest in any other person, until Atkinson was fully paid and satisfied, and this did not happen until after the sale to the appellant, on the execution on Harison’s judgment.

The idea thrown out, on the argument, that the estate did vest in Birdsall, and, afterwards, in Smith, as far as the consideration money paid, and that it remained in Atkinson, in regard to that part of it which was unpaid, is a novelty in the law, without any authority or reason for its support. It. supposes a community in the use, partly in the vendor and partly in the vendee, in proportion to their interests in the estate. It cannot admit of a doubt, that the statute embraces those cases only, where the entire estate, out of which the use arises, vests in the cestui que use, in consequence of his having paid the whole consideration money; and I have met with no case or dictum countenancing the doctrine of a divided use, vested in the vendor and vendee. We have been referred to Sugdcn, 120. for the principle, that equity looks upon things agreed to be done, as done ; and that when a contract is made for the sale of an estate, equity considers the vendor as a trustee for the purchaser, and the purchaser as a trustee for the purchase money, for the vendor. This, however, is merely so for the purpose of affording the requisite remedy upon contracts, and the doctrine has no connection with, or relation to, the statute of uses. It is an artificial rule adopted in equity to coerce parties to the fulfilment of their contracts.

I fully accede to the proposition laid down by the chancellor, that the fourth section of our statute of uses, was taken from

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a branch of the English statute of frauds, and relates to those fraudulent and covenous trusts in which the *cestui que use has the whole beneficial interest, and the trustee the naked and formal title. It undoubtedly extends, also, to a transaction which was not originally fraudulent, as where the trustee had at first an interest in the estate, but which, subsequently, became extinct, and the whole estate vested in the cestui que trust. Had Smith, as the assignee of the contract with Birdsall, paid Atkinson the whole consideration money, the statute would have applied, for then Atkinson’s retaining the legal estate, would, as regarded creditors, have been fraudulent; Smith never having paid Atkinson the money due him, had but a mere equity in the lands, which could not be reached by execution. I am, therefore, of opinion, that the decree of the Court of Chancery ought to be affirmed.

March 31

This being the unanimous opinion of the court, it was thereupon ordered, adjudged, and decreed, that the decree of the Court of Chancery be affirmed, and the appeal be dismissed : and further, that the appellant pay to the respondents one hundred dollars, together with their costs to be taxed, for their damages and costs, in defending the appeal; and that the record be remitted, &c.

Decree of affirmance,^[1]

(a) (a) Vide Jackson, ex dem. Stone, v. Scott, 18 Johns. Rep. 94 . A person in the possession of land, under a contract for the purchase and sale of it, has an interest in the land which may be sold on execution. The defendant in such case becomes quasi tenant to the purchaser, and cannot object that he has no title. Ingalls v. Lord, 1 Cowen, 240. Jackson, ex dem. Cary, y. Parker, 9 Cowen, 85. Jackson, ex dem. Ten Eyck, v. Walker, 4 Wendell's Rep. 462.