Brennan v. Brennan — 50 N.Y. St. Rep. 260

Majority

p. 260

Michael Brennan, Resp't, v. Patrick Brennan, App'lt.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Specific performance—Paroi agreement to exchange land.

The parties, who are brothers, agreed by paroi to exchange their lands, and plaintiff delivered a conveyance of his land and paid a sum agreed on; while defendant gave plaintiff possession of his land, but gave no conveyance, and after twenty years, demands rent. Held, a plain case for the enforcement of a verbal contract for the exchange of land. '

Appeal from judgment declaring plaintiff to be the owner of ■certain land and requiring defendant to execute a deed to him thereof.

Action to compel the specific performance of an oral agreement, made in 1870, for an exchange of land. Plaintiff in pursu- j ■anee thereof executed and delivered a conveyance of his land and gave defendant $1,200 in gold, and entered into possession of i ■defendant’s land, but defendant never gave a deed thereof, but, in j 1890, demanded rent of plaintiff.

George W. Mead (G. G. Reynolds, of counsel), for app’lt;

Geo. W. Wingate, for resp’t.

It is the object of this action to enforce the specific performance of a verbal agreement for the exchange of real property.

The parties are brothers, and in the year 1870 they made an .agreement, which was not reduced to writing, by which the defendant agreed to exchange certain real property which he owned with the plaintiff for certain real property which he owned and twelve hundred dollars in money.

In execution of that agreement the plaintiff conveyed his property to the defendant at the time and paid him twelve hundred dollars in money and gave him possession of the property, and the defendant gave the plaintiff possession of the property he was to receive, but failed to give him any conveyance thereof.

Both parties remained in possession of the respective properties.

The cause has been tried at the special term and the trial judge has found the facts as we have stated them, and according to the •contention of the plaintiff, and a careful examination of the testimony conducts us to a full concurrence with his conclusions both of fact and law.

The defendant is evidently endeavoring to withhold this property from the plaintiff after having received full compensation therefor, and this is a plain case for the enforcement of a verbal contract for the sale and exchange of land.

The testimony is exceedingly contradictory, but the trial judge has deduced the truth therefrom.

The case is peculiar and depends so much upon its own features that we deem an extended opinion unnecessary.

We concur entirely with the decision and judgment. It enforces justice and defeats a fraudulent design.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J.,concur.