Canda v. Totten

It is the object of this action to obtain a judgment which shall require the defendant to convey to the plaintiff four lots of land in the city of Brooklyn.

The cause has been tried before a judge of this court without a jury and decided in favor of the plaintiff, and the defendant John 'Totten has appealed from the judgment entered upon such decision.

According to the claim of the plaintiff the facts of the case are

The defendant attended the sale, which was a public auction, and bought four parcels of real property for $540. lie paid the auctioneer’s fee of $20 on each lot, and twenty-five per cent upon the-amount of his purchase with his own checks; one for $80 and the-other for $135. That was on the 15th day of February, 1894, and on the twenty-seventh day of -the same month the defendant paid the balance of the purchase money and received deeds of conveyance for the lots in his own name.

On the following day the husband of the plaintiff went to the office of the defendant and handed him an envelope containing-$620, and gave him $10 besides. There is no proof that the defendant John Totten consented to accept the money, and he says he did not consent to do so. He took the money and placed it in his bank. The husband says he then requested the defendant to-make a deed to the plaintiff.

We have taken the version of the parol agreement, and of this-last transaction respecting the money left with the defendant from the testimony of the plaintiff’s husband, because it is the most-favorable to her, although the defendant in his testimony gives a very different version of both. In respect to the other facts which, we have stated there is no 'dispute.

It is to be observed preliminarily that there is no consideration, shown for the agreement. There was neither loss nor harm to the plaintiff nor benefit to the defendant. The plaintiff surrendered no right and the defendant John Totten acquired no privilege thereby. The plaintiff was at liberty to attend the sale and buy the property after the agreement, and it was the right and privilege of the defendant to attend the sale and buy the property without the agreement.

There is no proof that the plaintiff omitted to attend the sale or to procure the attendance of others in reliance upon the agreement.

The question presented for solution under the foregoing facts is-whether a court of equity will enforce the performance of a parol agreement between these parties whereby the defendant John Totten undertook to attend the public sale of the land in question, buy the, same thereat, pay for it with his own money, take the title in his own. name for the benefit of the plaintiff, and then convey the property to the plaintiff.

The answer to the question depends primarily upon the contract.If that be valid the answer will be in the affirmative. If invalid in. the negative.

The contract must be tested by the statutes relating to fraudulent conveyances and contracts in relation to lands.

The particular sections applicable to this case ai-e these: “ Section 6. No estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power, over or concerning' lands, on in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring' the same, or by his lawful agent thereunto authorized by writing.”

“ Section 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing and be subscribed, by the party by whom the lease or sale is to be made.” (2 R. S. 134, 135.)

As we have already seen, the agreement was that the defendant-should convey the land in question to the plaintiff, after he had-bought it, and that contract falls directly under the condemnation of section 8 of the statute, which declares, that such contracts shall be void unless the contract or a note or memorandtim thereof, be in writing.

The agreement between the parties was, therefore, void, and the defendant was under no legal obligation for its performance. Neither can it be successfully claimed that the agreement created a trust which the defendant John Totten was bound to execute, because

Even where courts of equity intervene to enforce the performance on the ground of fraud, such intervention is • not for the purpose of upholding or enforcing the parol trust, but for the purpose of relieving against fraud. That end is attained by treating the perpetz'ator of the fz’aizd as a trustee ex maleficio, and zzot a trustee by virtue of the parol agreement. A breach of such a contract for the sale does not create a trust, and a party comznits zio fraud by refusing to pez-fonn a void contract, because in a legal sezzse he has made no contract.

It is to be observed further that the plaintiff here makes no complaint of the conduct of the defendant John Totten in making the purchase of the property. That was in accordance with her version of the agreement. The defendant John. Totten, therefore, committed no wrong at the sale. It is the subsequent breach of the contract of which the plaintiff complains, but it caiznot be successfully contended that a breach of the proznise will impress a trust or create any obligation which the contract itself was insufficient to impose. The foregoing views are sustained and the pzinciples laid down in the cases of Lathrop v. Hoyt ( 7 Barb. 59 ); Levy v. Brush ( 45 N. Y. 590 ); Wheeler v. Reynolds (66 id. 229) and the cases cited in the opinion in the last case. (Bauman v. Holzhausen, 26 Hun, 505 .)

In relation to the case of Ryan v. Dox ( 34 N. Y. 307 ), which is invoked by the plaintiff in this ease, it is sufficient to say that the case is so unlike the present one as to be incapable of application here. It is trae there was in that case,-as in this, an offer of perforznance, bzzt if the statute can be avoided in that way it is practically a nullity. (Levy v. Brush, 45 N. Y. 597 .)

It is further insisted that the cozztract has beezz paz’tially performed, azzd, therefore, the court should decree its specific perfoz’znazzce.

We must, therefore, see whether there has been any performance of the agreement.

There has been zzo payment of the purchase znoney, for although the husband of the plaintiff left the money with the defendant, he never agreed to accept it. There can be no payment without an

What money the plaintiff has paid was without the assent of the defendant John Totten; she was a volunteer in the matter, and we suppose the term “part performance” in the statute requires action with the assent of both parties; especially must that be so in relation to expenditures upon the property. (Freeman v. Freeman, 43 N. Y. 39 .) In any view, however, if there was a payment after the purchase of the defendant John Totten was completed, it would be of no avail. (Botsford v. Burr, 2 Johns. Ch. 405 .)

After a most thorough examination we are unable to affirm this judgment. In no view has the plaintiff any cause of action against the defendant. lie has not induced the plaintiff to do one single act, and lie lias not placed himself under any legal obligation to her. He has not induced her to pay any money or make any expenditures in any way or for any purpose.

In short, the plaintiff has lost no money and has .been placed in no disadvantageous position by reason of any act or inducement of the defendant.

. It is claimed on behalf of the plaintiff that the retention of the property by the defendant and his refusal to convey the same to the plaintiff was the result of a change of his original purpose, but if it was and he did change his design he had a legal right to do so. Courts speak for the law and not for morals.

This case is a good illustration of the wisdom of the Statute of Frauds. We have adopted the plaintiff’s version of the contract, but the defendant denied in positive terms that he made such an agreement, and his testimony is quite as natural and quite as consistent with the motives which actuate men in affairs of business as that of the plaintiff’s husband.

So far as our researches have extended, the decisions of the courts in cases analogous to this have been uniformly in accordance with our conclusion. In the case of Lathrop v. Hoyt ( 7 Barb. 59 ), where the defendant, at the plaintiff’s request, agreed by ]3arol that he would go and attend a sale of the plaintiff’s farm under a decree of foreclosure; that he would bid off the premises and take a deed in his own name; that he would give the plaintiff an opportunity

That decision was approved in the case of Wheeler v. Reynolds (supra) more than twenty-five years after it was made, and ten years after the decision of the case of Ryan v. Dox in the same court.

Judge Story, in his erudite and exhaustive work on Equity Jurisprudence, promulgated the same rule in the following language: “ Where a man employs another person by parol as an agent to buy .an estate for him, and the latter buys it accordingly in his own name and no part of the purchase money is paid by the principal, there, if the agent denies the trust, and there is no written agreement or document establishing it, he cannot, by a suit in equity, .compel the agent to convey the estate to him, for * * * that •would be decidedly in the teeth of the Statute of Frauds.” (2 Story’s Eq. Juris. § 1201a.)

The same doctrine was laid down by Chancellor Kent more than ¡seventy-five years ago, in the case of Botsford v. Burr ( 2 Johns. Ch. 405 .)

The judgment should be reversed and a new trial granted, with •costs to abide the event.

Brown, P. J., concurred.

I concur. The principle of Ryan v. Dox ( 34 N. Y. 307 ) and Carr v. Carr (52 id. 251) has no application to this case. In the cases cited the party in whose favor the agreement to purchase was made had an interest to protect at the sale, and the purchaser under this agreement became merely a mortgagee. This distinction is well pointed out in Bauman v. Holzhausen ( 26 Hun, 505 ), decided by the General Term of this department. Here the plaintiff had no interest in the property sold. She had not joined in the assignment, and her dower could not be divested by the sale. To justify a decree in her favor she was bound to show such a part performance as would take the case out of the Statute of Frauds. This has

Judgment reversed and new trial granted, costs to abide event.