Lobdell v. Lobdell

This action is brought to compel a specific performance of an alleged parol agreement between the Plaintiff’s father and the Defendant’s father, by which the former agreed to convey to the latter a piece of land. The complaint states the agreement as follows: “ That on or about the first day of November, 1846, Pliny Lobdell, for a good and valuable consideration, paid by Seymour Lobdell to said Pliny, sold, and, by parol, conveyed to said Seymour Lobdell all that certain piece or parcel of land,” describing it by metes and bounds, “ containing about fourteen acres of land, more or less ; and at the same time said Pliny Lobdell yielded and gave up to said Seymour Lobdell the full and complete possession of said lands and premises, and agreed to and with said Seymour Lobdell to execute and deliver to him or his heirs a good and sufficient deed of conveyance thereof, in writing, at any time, on request.” It then sets forth that, in pursuance of such sale and conveyance, and relying upon the same, and upon the said promise to convey by a good and sufficient deed, the said Seymour, with the knowledge and consent of said Pliny, took and entered into the possession of the whole of said lands, and cleared up a large portion thereof, and tilled, cultivated- and used the same as his own, continuously, until his death; and

The ease was tried before a referee, who found and reported that, in November, 1846, the said Pliny Lobdell made a verbal agreement with said Seymour Lobdell, that if the said Seymour would take possession of and clear up, and reduce to cultivation and make improvements upon about fifteen acres, parcel of a piece of wild land owned by said Pliny, the said fifteen acres should become the property of said Seymour, and that he, the said Pliny, would convey the same to him by a sufficient deed of conveyance for that purpose; and that the said Seymour took possession of said fifteen acres under said agreement, built a log house thereon with Pliny’s assistance, moved his family into the house, and commenced to clear up the land, and built a barn on it; and in 1852 erected on it a framed dwelling-house, into which he moved his family, and where he continued to reside until his death in May, 1864. That while so residing on the premises he cleared all of said fifteen acres but about three acres, fenced it, reduced it to cultivation, raised crops upon it, and had the entire management, use, and enjoyment of it as his own property. That the said Pliny and Seymour built a line fence between it and the residue of the lot, on which residue Pliny cleared up to the line fence on one side, and Seymour cleared up to it on the other; the said Pliny having built upon the said residue, where he lived for the last ten or twelve years of his life, and died in November, 1864.

As a conclusion of law the referee found that the Plaintiffs were entitled to judgment against these Defendants, who bring this appeal; that they convey the said fifteen acres to the Plaintiffs.

The General Term affirmed the judgment entered upon the re

Ho question is raised but that the contract, if made as found by the referee, was taken out of the Statute of Frauds by the part performance; but the Defendants’ counsel insists that the contract found is not sustained by any evidence; that, at all events, it is not so clearly and satisfactorily proved as to make it a case for specific performance; that the failure to prove the contract set up in the complaint should have produced a dismissal of the complaint; that the promise found was without valuable consideration ; that the conditions were not fully performed by the prom-isee, and that the fifteen acres given to the Plaintiffs was more than they are entitled to.

It is impossible to maintain that there is no evidence to support the findings of the referee. The testimony of Haney Lob-dell, the widow of Pliny, that her husband told his two sons, Seymour and Ammon, that they might have fourteen acres apiece, to go on to, and do the work as he did, and, as long as they did as he wanted them to, they might stay on it; that they should clear it up in farm-like style, and should not run over it; and (as stated on her cross-examination) that, if they would go down on to this lot and cultivate it, the land should, some time, be theirs, together with the fact that they did go down and each take possession of the piece assigned him; that when, some six months afterward, they came and asked him for deeds, or writings which on his part would entitle them to the land, he refused, on the ground that his word was as good as a writing; that Seymour did clear, cultivate, and build on the piece assigned to him; that the father assisted in making the line fence, cutting it off from his other land, and recognized to various witnesses Seymour’s right to control it, and told the witness, Oliver Pierce, after Seymour’s death, that he meant to have deeded it to Seymour before he died, is surely some evidence in support of the finding of the referee, as to the agreement and its terms.

Whether the Court would have come to the same conclusion as the referee did, in regard to the contact, upon the whole evidence,

The rule which Courts of Equity have- adopted in suits for the specific q>erformahce of contracts- requires that the contract be established-by competent and satisfactory proof,- to be clear, definite, and -certain, for the reason, as Judge Story expresses-it, that a Court of Equity “ ought not to act upon conjecturesand if the proof should end in leaving the contract uncertain, so that the Court cannot say what its precise- import and -limitations are, a decree for a specific performance will be withheld (1 Story’s Eq. Jur. §§ 764, 767). All this depends upon the evidence.;- and if evidence is given in the Court below tending to the establishment of such a contract, the sufficiency of the proof to satisfy" the- mind of the Court as- to the existence of the contract, with the requisite degree of clearness and certainty, is not a matter for this Court to consider.

The variance between the contract set up in- the complaint, and that found by the referee, is not such-as to require a dismissal of the complaint.- Even under the- former practice of the -Court' of Chancery, no such Ron rule existed, but a variance-might have led to an amendment of thé bill rather than its dismissal (Harris v. Knickerbacker, 5 Wend. 638 ); or the Court would sometimes decree a specific performance in favor of • the Plaintiff, notwithstanding he failed to make out the case stated.in his bill (1 Story’s Eq. Jur. § 770; Mortimer v. Orchard, 2 Ves. Jr. 243). The rule of practice established by the Code in regard to variances, however, whatever was the former rule, must now prevail in cases of this kind, as well as others. The difference between the terms of the contract, as alleged, and those proved in this case, was a mere variance, and was properly disregarded (Code, §§ 169-171). The promise to convey, as found by the referee, was not a mere voluntary one, but was made upon a valuable consideration, emanating from a loss or disadvantage to the promissee. Pliny said to Seymour, “ If you will bestow certain work and labor iipon- this

The performance of the agreement by Seymour Lobdell, as found by the referee, is, I think, sufficient to entitle the Plaintiffs to the conveyance. There is no defect of performance, unless in the fact that about three acres of the fifteen remained uncleared.

In regard to the quantity of land contained in the piece fenced off for Seymour by the line fence built by him and his father, the referee also found that, although the exact quantity lying south of the fence was not distinctly proved, yet the parties spoke of it, treated and supposed it to be fifteen acres. The conclusion of law that the said Seymour Lobdell, at his death, was justly and equitably entitled to a deed of conveyance in fee of said fifteen acres of land from said Pliny, and the direction of judgment for a conveyance to the Plaintiffs of said fifteen acres of land, does not give them any land north of the said division fence; and if the Plaintiffs in their judgment have so described the land as to include land north of such fence, the Defendants’ remedy for such wrong is not to be had upon this appeal, but by application to the Court below, to correct the judgment in that respect.

Upon the trial Ammon Lobdell and George Lobdell, the Defendants against whom the decree to convey was made, were sworn as witnesses, and each was sought to be examined in his own behalf, in respect to the arrangement made between Pliny Lobdell, their father, and Seymour Lobdell, in their presence, under which Seymour went into possession of the land in question ; which was objected to by the Plaintiffs, on the ground that the witnesses were not competent, under the 399th section of the Code, to testify to such transaction. The objection was sustained, and the Defendants excepted. The 399th section of the Code, as it stood at the time of the trial, authorized parties to be witnesses in their own behalf, in the same manner as other witnesses, “ pro

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Reversed.

JOEL TIFFANY, State Reporter.