Weed v. Terry , 1 Walk. Ch. 501 ( 1844 )

The Chancellor.

It is not necessary to decide whether complainants, or defendant, would have succeeded at law in making a good title to the lots. Neither party was exactly satisfied as to the title. Both claimed the lots; — complainants under the levy and sheriff’s deed to them, and defendant under his deed from Le Roy ; — and they finally agreed to compromise the matter by dividing them between them, in proportion to their respective claims against Le Roy, and McConnell was agreed upon to make the division. The doubt hanging over the title was a sufficient consideration for this agreement. Attwood v.-, 1 Russ. R. 353. And, if there was nothing unfair on the part of complainants in bringing it about,— no advantage taken of defendant, — and there has been a part performance of it to take it out of the statute of frauds, a specific performance should be decreed.

The delivery of possession under an agreement is an act of part performance. Willis v. Stradling, 3 Ves. R. 378 ; Boardman v. Mostyn, 6 Ves. R. 467; Bowers v. Gator, 4 Ves. R. 91; Gregory v. Mighell, 18 Ves. R. 328 ; 1 Sugd. on Vend. 116, and cases there cited.

The agreement, and the division of the lots by McConnell, who awarded numbers 11 and 12 to complainants and the others to defendant, are admitted; but defendant denies delivering possession of them to complainants, or to Knight, their agent. The only effect of this denial is to drive complainants to proof of the fact; — the answer not being-evidence, though under oath, as an answer under oath is waived by the bill. Knight, who is complainants’ principal witness, and who acted as their agent in making the agreement, and was one of their attorneys in obtaining the judgment against Le Roy, states in his testimony that Terry said, after the division was made by McConnell, that it was fair, and he was satisfied with it; and that it was then agreed, deeds should be executed by the parties to each other, and that, in the mean time, they should take possession of their respective portions. That Hunt, as tenant to Terry, was then in possession of all the lots; and, as the year for which they had been let to him would expire in a few days, Terry was to receive the rent; that Knight, as agent, agreed to let lots 11 and 12 to Hunt for another year, at $100 rent, if Hunt did not remove upon a farm he owned; and that Hunt, under this agreement, occupied the premises about a fortnight after his lease from Terry expired, when he went to reside on his farm, and the premises were let by Knight to a Mr. Miles. Knight’s testimony does not stand alone with regard to the possession. It is supported by facts and circumstances, testified to by McConnell and Hunt. McConnell says, Terry expressed a willingness at the time, (when the lots were divided,) to give possession of the house and two lots. Again, “I think it was agreed that each party should, at the time, go into possession.” Hunt says, “Terry did not appear to have any thing further to do with the house; and Mr. Knight took upon himself the control, without any objection, to the knowledge of deponent, from Mr. Terry.” If Terry had not given up the possession to complainants, how happened it he did not call upon Hunt, to know whether he wanted the premises another year; or for rent the fortnight he continued in possession after his year had expired ? Or that he did not rent the premises to some other tenants? Was he ignorant that Knight, as complainants’ agent, was acting the landlord in letting the house, making repairs, and the like? He says Knight took possession when he was absent, and without the state. But he does not state the time, nor has he adduced any proof of the fact.

v Terry was not taken by surprise, when he entered into the agreement. The first conversation between him and Knight on the subject, was in the summer of 1840, and the division was not made until March, 1842. After the deed to complainants for the two lots had been drawn, and Knight and Whittemore had called with it at his house, to have it executed by him and his wife, and found him absent from home; on being informed of it, he promised to execute the deed whenever Whittemore would call again for the purpose. That he was deceived all this time, in supposing the proceedings on the execution were regular, and that there was no question as to complainants’ title, is incredible,'and contradicted by the testimony in the case. Could he have thought Knight wished to give him his clients’ property ? In a conversation between him and Knight, Charles Terry, his own witness, says he heard him say the sheriff’s sale was not good; Whittemore testifies to about the same thing, in one or more conversations he heard between them, and, moreover, that Terry advised, with him as to what he had better do.

A decree must be entered that defendant execute, acknowledge, and deliver to complainants, a quitclaim deed of lots 11 and 12, with a covenant against his own acts, and procure his wife to join therein or release her right of dower, on receiving a like deed, executed and acknowledged by complainants, for the other lots. And defendant must pay to complainants their costs.