Malins v. . Brown , 4 N.Y. 403 ( 1850 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] According to the bill, and the proofs in the cause, it appears that Malins and Ward were negotiating for the purchase and sale of a lot of land, owned by the latter, upon which, together with other lands, a mortgage held by N. Munroe, the defendants' testator, was a lien; that Malins insisted that the premises should be discharged from that incumbrance before he would complete the purchase. It was then arranged between the mortgagee, Malins, and Ward, that the purchase money should be paid, that Munroe should receive $700 out of it, and release his lien upon the premises, which were to be conveyed to the vendee. The parties met accordingly, at the office of Munroe, the purchase money was paid, and $700 received by the mortgagee, and a deed executed by Ward; when Munroe, after obtaining the money, assigned business with others as an excuse for not then executing his release. No release was ever executed, although repeatedly demanded of Munroe in his life time, and of his executors since his death; and this bill was filed to compel its execution.

The defendants insist upon the statute of frauds. To permit them to avoid the agreement upon this ground, would be to make the statute an instrument of fraud, instead of a shield against it. The money was paid by Malins and accepted by Munroe, as a complete performance of the agreement upon the part of the former. It was paid, relying upon the release of Munroe, which was then to he executed, and not upon his contract, that it should be given at a future period.

It is said that the payment of money will not take the contract out of the statute. This may be considered as an unsettled question, where the contract is for the sale of lands. It has been decided both ways in England. (13 Ves. 461, n. 1, Sumn.ed.; 3 Atk. 1; Carman v. Cooke, 1 Sch. Lef. 40.) InWetmore v. White, (2 Cai. Cas. in Err. 109,) it was assumed, that payment of the consideration entitled the party to a specific performance. The reason assigned by those who deny that payment of the consideration is, in equity, a part performance, is that the money may be recovered back, and the party reinstated in his former condition. This reason, which has been deemed unsatisfactory, has no application to this case. Thewhole purchase money was paid, and the sale consummated, upon the assurance that the release would be given. The recovery of the $700 and interest would not indemnify the vendee. He has been drawn into a purchase, which he would not have made, independent of the agreement of Munroe. That will always be considered a part performance, "which puts a party in a situation which is a fraud upon him, unless the agreement is executed." (2 Story's Eq. § 761.) Such was the condition of the vendee in this case, and he is entitled to relief notwithstanding the statute.

2d. The liability of Malins, upon his covenant of warranty, was an interest sufficient to enable him to maintain the suit. If he had paid the purchase money to Ward, of the forty acres, without insisting upon the release, the premises would only have been liable, upon the contingency that the other lands of the vendor, embraced in the mortgage, were insufficient for its payment. The whole object of the arrangement with Munroe was to avoid this contingent liability. It exists now, in another form; and the executors of Munroe have no right to insist that it is so remote, that the performance of the agreement of their testator will be of no importance to the other party. The complainant, Malins, had the right to stipulate for an exemption from a danger to himself or his estate, merely possible; much more, for the discharge of a subsisting legal incumbrance upon the lands purchased by him. The testator received the consideration and made the agreement; and if the executors believe what they alledge, they have no excuse for resisting its performance, as the estate they represent can not be injured. The decree must be affirmed.