Brown v. Jones , 46 Barb. 400 ( 1866 )

By the Court, E. Darwin Smith, J.

Upon the essential facts of the case, there is very little disagreement between the parties in this action. The complaint states that Morris Brown, senior, being in possession of the twenty-five acres of land in question, and desirous of purchasing the same, and not being in a condition to do so himself, at the time, applied to the defendant and requested him to enter into an agreement with Byers, the owner of the land, for the purchase thereof, for the use and benefit of him, the said Brown, which the defendant agreed to do, and subsequently did, and took a written contract for the sale to him of said land, from said Byers, for the sum of $500, to be paid in three equal annual payments, with annual interest from the 1st of April, 1861, which contract was made and entered into by the defendant for the sole and only use and benefit of the said Morris Brown, senior. The defendant admits these facts substantially as stated, and says that the said Morris Brown agreed by parol to make the payments upon the contract, from time to time, as the same fell due thereon, and to save the said defendant from all trouble on account thereof, and that if he did not so make such payments, the defendant would have the land. The defendant also, in his answer, says that he, by parol, accepted the proposition made to him by the said Morris Brown, and in pursuance thereof, and relying upon the promises and assurances therein contained, soon thereafter entered into a contract in writing with the said Byers, for the purchase of said land.

It is clear, therefore, and really undisputed and indisputable, that the land in question was purchased by the defendant in trust for the said Morris Brown, senior, and that the contract for the purchase thereof was made and taken and held by the defendant expressly for the use and benefit of the said Morris Brown. When the defendant afterwards took the title to said land, under the contract, it was in furtherance of, and in the execution of this trust. Such were the clear equitable rights of the parties, the said Morris Brown, senior, and the said defendant, in relation to each other, in respect to the land. But this contract between Brown and the defendant was by parol, and the defendant insists upon this objection in Ms answer, and sets up the statute declaring all parol trusts and contracts relating to land void, and claims the benefit thereof as a defense in tMs action. The-same statute provides that nothing therein contained shall he construed to abridge the power of the courts of equity to compel the specific performance of agreements, in case of part performance of said agreements.

' The question for us, therefore, is, whether a case is made, under tMs provision, for the interference of this court, as a court of equity, to enforce such parol agreement, upon the received and recognized principles of equity as administered in such courts in respect to parol agreements and trusts in relation to lands.

It appears from the proofs, and findings upon the facts, of the learned judge who tried the cause at the special term, that at the time when the parol agreement between Brown and the defendant for the purchase of said land was made, the land was wild and uncultivated, and that immediately after entering into said agreement with Byers for the purchase thereof by the defendant, the said Morris Brown then being in possession of said land, with the knowledge and consent of the defendant, commenced clearing the land and maMng valuable and permanent improvements thereon, and that in the month of July, 1862, the said Morris Brown, with the knowledge and consent of the defendant, paid to the said Byers the sum of $35, which sum was duly applied upon said agreement between Byers and the defendant as a part payment of the moneys due to the said Byers thereon.

It further appears from the said findings, that on or about the month of September or October, 1862, the said Morris Brown made another agreement with the defendant to advance the money payable to Byers on said contract and take a conveyance of the land and hold the same for his son, Morris Brown, junior, and convey the same to him on the payment of the purchase money, according to the terms of a contract, to be thereafter executed by the defendant to the said Morris Brown, junior. And that subsequently, and on or about the month of July, 1863, the defendant paid up the contract to Byers and took a deed of said land, the said Morris Brown advancing for his said son towards such payment^ previously to the making of the same, the further sum of $35, to apply on said land contract with the said Byers as part of the purchase money therefor, and which paid the interest thereon to the 1st of April, 1863. The value of the improvements so made upon said land, as above stated^ at the time of the defendant’s refusal to convey said land according to the request, as stated in said findings, amounted to and were of the value of $250, as stated in said findings, It is also stated in the said findings of the judge at special term, that during all the time of the making of the contract between the defendant and the said Byers and Morris Brown, the said Morris Brown, senior, continuing in possession of said land, paid all the taxes of every description which were assessed or imposed upon the same, and which were nearly equal in amount to the clear net value of the use and occupation thereof. Upon these facts, it seems to me, a case is clearly made out for enforcement in this court of the original parol agreement between Morris Brown, senior, and the' defendant. The new agreement made in behalf of the son of Morris Brown, for a conveyance to him of said land, as a distinct and independent agreement, I think is within the statute. But" it operated as, and was in legal effect an equitable assignment from Morris Brown to his said son, of his original rights, and was in effect a request, the said arrangement having been made by him in person, from him to the defendant to convey the land to Morris Brown, junior, in execution of said original trust or agreement. This original agreement was partly performed by payment of $35 interest due April 1, 1862, by the making by the said Morris Brown of permanent improvements on the land worth $250, and by the payment of $35 in December, 1863, the taxes thereon assessed from time to time.

The original cost of the land was $500, and the permanent improvements added fifty per cent to this value and cost. It would therefore be a clear fraud to deprive Morris Brown, or his son as his assignee, of the benefit of these im- ■ provements, and it is upon this principle, chiefly, that courts of equity give relief, in this class of cases. (Story’s Equity, §§ 759, 760, 61, 62.) Brown was in the possession of the landv His possession was recognized by the defendant under the parol contract. With his knowledge and consent, Brown cleared up and fenced the land, and made improvements thereon of a permanent character, such as were clearly made upon the assumption that they were to be for Ms own benefit, and that he was, or was to be, the owner of said land, and enjoy the use and benefit of said improvements. There is no other ground or reason why they were made. They can hot be accounted for in reference to any other consideration, cause or motive, except the. contract between Brown and the defendant. The defendant Jones, therefore, it seems to me, must be regarded, in eqmty, as a mere trustee of the title of tMs land, for the benefit of Morris Brown or his assignee, with the rights of a mortgagee, for the unpaid part of the purchase money advanced by him to Byers. The case is quite similar, in principle, to that of McBurney v. Wellman, (42 Barb. 400.) In that case McBurney took the title of the land of wMch Wellman held a contract, to help the latter, and under an agreement to give a contract of sale and time of payment. We held that he was a mere trustee of the title with the rights of a mortgagee, in respect to the moneys advanced by him for the benefit of Wellman.

The money wMch the defendant advanced to Byers to procure the title to the land in question in this action was in equity merely money loaned upon the security of the land. On the payment of that amount, with interest and expenses, the plaintiff was clearly entitled to a conveyance of the land. But the ease presents an exception in respect to this in the exclusion of testimony, which remains to be considered.

The defendant testified that on the 27th of December, he called upon M. Brown, and told him he did not want this payment (being the first payment on the contract to Byers) to lie along any longer, and that he had concluded to pay it up, and wanted $35 of him. He said he would pay it for Morris Brown, junior. “I (the witness) said I would receive it for the use of the land up to April, 1863, and I made an entry in my cash book to that effect.” The witness had previously testified that he kept a cash book and balanced it once a week, and had done so for twelve or fourteen years. The witness was then asked “What is that entry?” This question was objected to, and the objection sustained, and the defendant’s counsel excepted. The defendant’s counsel then offered to show the entries in the witness’ cash account by his cash book. To this the plaintiff’s counsel objected and the objection was sustained, and the defendant's counsel duly excepted. The offer to read this entry from the cash book of the witness was not, in the absence of all recollection of the facts by the witness, to prove the fact of such an entry, or the fact proved by such entry. The witness recollected the facts distinctly, and testified positively that he told Brown1 that he would receive the $35 for the use of the land up to April, 1863 ; and that he made an entry in his cash book to that effect. . The question in dispute was whether this $35 was paid and received for this purpose, or to apply on the contract to Byers, as testified to by Brown. If the defendant had had no distinct recollection of the payment or receipt of the money, and had sought to read the entry in said cash book to prove such receipt or payment, the entry would have been clearly admissible, within the cases of Guy v. Mead, (22 N. Y. Rep. 462,) or Halsey v. Sinsebaugh, (15 id. 485.) Formerly the rule was, in this state, that entries in books of account, diaries or other written memoranda, might be referred to, to refresh the recollection of the. witness, and not otherwise-, and that the witness must then state what his * I recollection, thus refreshed, was upon the subject of inquiry. ■ This rule operated, many times, to exclude testimony, from an entire failure of the witness to recollect any thing on the subject further than that he made the entry or memorandum at the time of the transaction, and that it was then true. In such cases, now, the' memorandum itself may be read in proof of the fact in dispute, as independent testimony. But in such cases Judge Selden, to whom is due particularly the assertion—if not the establishment—of the present rule, said, in Russell v. The Hudson River Railroad Co. (17 N. Y. Rep. 140,) “It however is an indisputable preliminary to the introduction of such memorandum in evidence that it should appear, as it' did in Halsey v. Sinsebaugh, (supra,) that the witness is unable with the aid of the memorandum to speak from memory, as to the facts.” In that case it appears, as the judge says, that the witness had a distinct recollection of all the facts, independent of the memorandum, and it was held that the latter was therefore improperly admitted-. Such are the precise facts in this case, and the rulings at the circuit were in precise accordance with the decision of the Court of Appeals in this case of Russell v. The Hudson River Railroad Co. But I do not think if the entry had been read, • it would have materially affected the case, or would have been likely, in any degree, to have changed or influenced the findings of facts of the learned judge upon this question. The witness Jones had testified positively as to the facts sought to be proved, and that he made an entry in his cash book to' that effect. The fact of the making of this entry in question, at the time, was therefore clearly proved, and the substance of the entry, and without objection. The reading of the entries could have been proposed and offered for no other purpose than simply to corroborate the testimony of the witness on this point, and if it had been strictly admissible for that purpose, yet I hardly think it would, under the circumstances of the case, be justifiahle to grant a new trial to correct an error really so non-essential.

[Mokboe Gehebai Teem, September 3, 1866.

Upon the whole case I think we must hold that it was properly disposed of at special term, and the judgment there rendered should be affirmed with costs.

Judgment affirmed.

Welles, K D. Smith and Johnson, Justices.]