Parker v. Crane — 6 Wend. 647

Majority

p. 647

Parker vs. Crane.

Headnote

The possession of lands being an interest which is the subject of sale, is an adequate consideration to support a promise to pay for the price thereof,

lif the consideration be past at the time of the promise, the act done, which is the consideration of the promise, must be stated to have been done upon the request of the party promising.

Demurrer. The declaration contains two counts in assumpsit on a special agreement. In the first count the agreement is set forth in hose verba ; it bears date in July, 1820, and after reciting, that whereas the plaintiff did, in April then last past, sell and convey unto the defendant the possession of a lot of land containing 50 acres, being part of lot No. 6, in Junius, said to be escheated to the state, the defendant undertook to pay to the plaintiff $127,50, on or before the 1st February then next, if he, the defendant, should be able to procure a deed of conveyance of the soil of the 50 acres from the commissioners of the land office or otherwise, so as £o obtain for himself a good and sufficient title to the same, or should ascertain whether John Mapes of Orange county, who formerly laid claim to the land, had, or was to have, after the date of the agreement, any right or title to the fee of the land, provided that such title was obtained by the defendant, or such information received previous to the said day of payment. The plaintiff then averred that on the 27th February, 1828, the defendant obtained title to the land by letters patent fvovn the state, and set forth the same also in tec verba, and concluded in the usual form, that the defendant had not paid the money specified in the agreement. In the second count the agreement was set forth substantially, the promise being alleged to be made in consideration that the plaintiff did, in April preceding the date of the agreement, sell and convey unto the defendant the possession of the said lot of land, and all proper averments being made. The defendant pleaded the general issue, and non-assumpdt infra seis anuos to each count. The plaintiff demurred.

p. 648

J. Ji. Spencer, for the plaintiff,

insisted that the plea of non-assumpsit infra, &c. was not proper in this case ; that if the defendant could avail pimself of .the statute of limitations, he should have pleaded actio non accrevit, &c. 2 Saund. 63, c.

‘J.-'Mc'Mislet; for defendant'.!

••The declaration-'is bad. -, The j?rsf count is'deféctiVe'i'ti "tiof allbgibg' hnyóonsidefátion-ffol'* the promise. 3 Johns. R. 100. 4id, 135, 280, 296. 5id. 272. It is bad also in not alleging that the plaintiff sold his possessÍ9-n .at^tp.q,(¡lefeqdangñ¡ request, 3 Caines, 286. 7 Johns. R. 87. t The^secQndj cp]qnts is badjn statingphe promise to be.pn a past consideration, and ip not averring that the possessiqnwas^ojd;af.,the rec[ueí¡t of the defendant, Both^oijnts ave. ba.d m -nof,, ayevppg Jjiat. the plainljff^ _\yps ever pos-? sesspd of [hpjaqd j in not setdngKfforth thp inqde p£ conveyapce, fro nr pipi tp.thqdefeadanf p innotalleging lhatthe land }yps pqnveye4 by the. state, to ¡the .defendant, as beiqg possessed there.of tbanafide^undev cplor p^.tipe^accorjijing to^thp requirements, of tfie ^ statute, and in not averripg [hat the defpndant.qbtaiped a good and^ufijciqnUitle. c¡,,,,,„, M¡,

Sij‘the

’SéVefa'f bbjectiohs'laf'd''tai kén’tó' the d'eciaratioii. '" Idle'defendant’s c‘óUnéel"b'ayi'98V little in* support*of'his'ple’as,’’But'iáttkcltíff,th,é'‘'cÍecícirátion‘.''! It ‘is certainly tide that' every prómiáe' thtist Have ií'"suffiéiént . consideration tti support'it,'unléss!tlVé' Jpi‘o’mi'áB" bh'fab’defsedl, or By writing; ihipórtíng" h!consideration'‘ as! for' itié'tdlicéya prbmis'soiy noté": in such' ‘cases’a consildera’ticfti1 need' ndt "bb stated in thé'dééláraiíbn/’' This is not súcíi á'báséf'f1

Tile coimts are 'substantially’alike'; thé' ¿rát' sets' éü'6 Ufé wntfen agreemént’ih terms,‘ the second ‘states" the’substance of it!" (i Thé'cqnsídérátibn' stated is'tlife' sale ánVconvey'ah'cé1, op á'day which Vas then 'jsást', of tile possession‘of dUhcies ¡of land, Being' part of lot Nbi’6,'t/uniusj’stii'd to' Be esclvéáté'd to'tile state. " ^‘consideration upon"which’ an assumpsit;shall tiefounded, must :Be‘¥óf: the benefit' of IlVe' clefendaht, o'r to JtBetrbubié or prejudice -of the pMh'tiff.* 1. Fonb. 336, n. 5 Johns. R. 227. '2Ilfu‘TMpossession of'TáMs fe" áif inteióstVlnbh may be the subject of "dVéáléj ánd th'eréfoVe is Wri adequate consideration to support a promise for the price. The trans

p. 649

fer of the possession was a prejudice to the plaintiff,, and a benefit to the defendant, and therefore a good consideration; but as stated in the contract, it was a past consideration, and therefore it should have been stated that the possession was sold at the request of the defendant. The case of Comstock v. Smith, 7 Johns. R. 87, is in-poipt. There the plaintiff stated in one count, for that whereas the defendant, on the 15th March, 1808, in consideration that the plaintiff had, before that time, sold and conveyed to the defendant a certain farm, undertook and promised, &c. On a motion in arrest, the court said: This is a promise on a past consideration, and all the cases agree that it should be laid as done upon the request of the party promising, or at least it must appear that the party promising was under a moral obligation to perform the promise. 1 Caines, 585. 1 Fonb. 336, n. I cannot distinguish this case from Comstock v. Smith. It is also objected that it should have been stated that the defendant came within the provisions of the statutes relating to escheated lands. That was not necessary. The plaintiff transferred the possession to the defendant. If, by virtue of that transfer, he obtained title, the promise attached.; but for the defect above stated, both counts are bad, and the., defendant is entitled to judgment, with leave to plaintiff to amend, on payment of costs.