Fraser v. Child

Daly, J.

It appeared by the testimony of the witness, Clift, that Child, the defendant, had purchased, for $1,400, at a sheriff’s sale, under an execution against one Howland, Howland’s interest in certain lands, subject to a mortgage in favor of one Allen for $2,250; and being unable to make payment within the time required, Fraser, the plaintiff, advanced the money for him, and Child assigned to Fraser the sheriff’s certificate. After the purchase, Child ascertained that there was a right of dower in Howland’s widow, and two judgments, which were prior incumbrances on the land. And with a view of getting a clear title to the property, it was agreed between him and Fraser, that an assignment of Allen’s mortgage, which was past due, should be obtained, Fraser advancing the money for it; that the mortgage should be foreclosed, and the property purchased at the mortgage sale, if possible, at the amount of the mortgage; that the purchase should be a joint affair, and that if any deficiency or loss should arise upon the sale under the mortgage, Child would make up one half the deficiency, or bear one half the loss. Child negotiated with Allen, and with his lawyer, Clift, for the assignment of the mortgage. It was assigned to Fraser, he paying Allen the fu ’.mount of it, with the interest, and a claim for insurance, ¡ unting, in all, to $2,375 05. The mortgage was foreclosed, and, contrary to expectation, the land sold for $4,750—a sum exceeding the amount of the mortgage, and more than sufficient to pay off the existing incumbrances, but not sufficient to reimburse Fraser for the amount he had advanced. The surplus arising, after the payment of the mortgage, was paid to the city chamberlain, and a reference ordered, to ascertain the rights of the different claimants to it. The widow’s dower interest was computed according to the usual mode, and found to be $514 22; after the payment of which, and of the two judgments, together with the expenses of the reference, there was found to be a deficiency of $483 37 between the amount remaining and the whole amount advanced by Fraser, to recover the one half of which deficiency, $241 68, the action below was brought.

Upon the facts thus established, by the testimony of Clift, the plaintiff was entitled to recover. Clift derived the knowledge of what he swore to from the statement made to him by both parties, pending the negotiation for the assignment of the mortgage, and while he was employed in foreclosing

Nothing was shown, on the part of the defendant, but a statement of the witness, Ackerman, that he once told Fraser that if he could get a good title to the property he would give him ten per cent, on $4,500 or $5,000 for it, and that he replied that he would take it—a declaration not necessarily conflicting with what was established by Clift’s testimony.

This was not a contract creating, assigning, granting or surrendering any interest in lands, which would be void by the statute, as not being in writing, nor was the plaintiff seeking to enforce an executory contract. He advanced money upon the defendant’s assurance that if any loss was sustained thereby, the defendant would bear one half of it. A loss was sustained, and the defendant is liable to make good one half of it.

Ingraham, First J.

If the contract in this case was originally a contract in relation to land, and, by being in parol, void by the statute, part performance would not relieve the difficulty. The contract would still be void. In Abbott v. Draper, 4 Denio, 53, Judge Bronson says: “ Part performance does not take the case out of the statute, so that the contract can be enforced in a court of law.” In that case it was held that a purchaser in possession under a parol contract could not recover back the money he had paid on account, until he returned the possession, and demanded the repayment of the money. And even if he did so, it was then doubted whether he could recover back the money he had paid, if the vendor was willing to perform.

The reason given is not that partial performance made the contract valid, but that he had paid the money with a full knowledge of all the facts; and if the vendor does not refuse to comply, money so paid cannot be recovered back. (See, also, 5 Cow. 162; 14 Johns. R. 358.)

But I do not understand this contract to be for an interest in lands within the statute. Stripped of all the surrounding circumstances, it was simply an agreement with the plaintiff, that if he would advance for the defendant $1,400, he would give him an assignment of the sheriff’s certificate, and after the plaintiff had done certain things then agreed upon between them, relating to the mortgage and other proceedings, that he should sell the property, and if he was not repaid the amount advanced, defendant would pay half.

■ If A., the owner of a lot of ground, procured from B. one thousand dollars, and conveyed to him a lot of land on the parol understanding, that if B. sold it, and it did not bring $1,000, he would pay the deficiency, there would he no doubt that B. could recover such deficiency, and that the statute of frauds would not apply. The present case is similar in principle.

I think the plaintiff was entitled to judgment for the amount of his claim and interest.

Woodbhfe, J., concurred.

Judgment reversed