Dewey v. Hoag

Hand, J. The answer does not state that the alleged agreement for the sale and purchase of the land was not in writing. The statute of frauds, at law, did not alter the form of declaring upon a contract. That is matter of evidence. (1 Saund. R. 211, n. 2. Elting v. Vanderlyn, 4 John. 237. State of Ind. v. Woram, 6 Hill, 33. Gibbs v. Nash, 4 Barb. 449.) And the rule was the same in setting up an agreement in a bill of complaint. (Cozine v. Graham, 2 Paige, 177. Champlin v. Parish, 11 Id. 405.) It has been said, that if the defendant pleads in bar any agreement which is required by the statute to be in writing, he must state it to be so. (1 Saund. R. 211 a, n. 1. Id. 277 a, n. 2.) For the defendant shall not take away the plaintiff’s present action and not give him another, upon the agreement pleaded. (Case v. Barber, T. Raym. 450; S. C. 1 Vin. 378. 1 Chit. Pl. 270, 464. And see Rob. on St. of Frauds, 203, n. 88 a.) The reason assigned for this rule does not seem to be very satisfactory; and I am inclined to think, that where a recovery is attempted to be resisted by interposing an equitable counter claim in the nature of a cross-bill, the ordinary mode of stating the agreement in a bill of complaint in chancery, is sufficient. But admitting the agreement between the parties, as set forth [369] in the answer, to have been in writing, and that the plaintiff furnished the money to bid off the property; as there was an express agreement for purchase and sale, I think there was no resulting trust, even if a writing would take the transaction out of the statute in relation to resulting trusts. (1 R. S. 728, § 51.) If it gave to the plaintiff an executed use, so as to convey the legal estate, of course it would have been fatal to the defendant; as he could not object that the plaintiff demanded only one-third for life, instead of the whole in fee. There would be a misdescription of title, both as to the nature of the estate and the quantity of interest; but the defendant could not have claimed judgment on that ground. It would be no answer to the complaint that the plaintiff did not claim enough. In his points, the counsel for the plaintiff takes it for granted that the agreement was merely verbal. If that be the fact, not only did the plaintiff take no legal interest, but the agreement was void. (2 R. S. 134, 5, § 68.) There could be no resulting trust in favor of the plaintiff. (Id. 728, § 51.) There is no pretense that the defendant took the deed in' his own name without the consent or knowledge of 'the plaintiff, or in fraud of her rights. (Id. § 53. Lounsbury v. Purdy, 11 Barb. 490.) On the contrary, according to the answer, it was by mutual understanding. But admitting a court of equity would, in a suit for that purpose, enforce a specific performance of this agreement, it is insisted that the answer contains an equitable defense or counterclaim. I do not understand there is any equitable defense, simply as a defense in an action of ejectment.- The effect of that might be to keep the legal title and the possession forever separate. Under the code as amended, it is said the action may be met by an equitable title of the defendant, and a claim for a conveyance of the legal estate. (Code, §§ 150, 274. Haire v. Baker, 1 Seld. 357.) The legislature may have intended, and probably did, to go to that extent; and though the practice will sometimes be embarrassing, and there may be some doubt as to final costs, in many cases complete justice may be done in one suit. But if that is now the correct practice, to defeat a recovery the defendant must become an actor in respect to his claim; [370] and his answer must contain all the elements of a hill for "a specific performance; and he must ask and obtain affirmative'relief. The judgment must be for the plaintiff, that he recover the land; or for the defendant, that the plaintiff convey to him, on such terms as the court shall adjudge. A mere judgment for the defendant that the plaintiff take nothing by his action, would not be consistent with the pleadings, for such an answer admits legal title in the plaintiff. In this case the defendant alleges that since the sale he had offered to perform, and has always been and is ready and willing to perform; but he does not offer to perform, nor ask that the plaintiff be required to perform; and claims no judgment except for costs. {Saratoga Special Term, June 6, 1853. Hand, Justice.] There is also an objection on the merits, that is conclusive, to this part of the answer. The right of the plaintiff to dower, it is "not pretended was or could have been sold upon the foreclosure. There was no agreement for the purchase of that; and if there had been, it would have been without consideration, for the plaintiff was already entitled to it; and that is all she now-claims. And again; a cause of action arising out of a contract to purchase the remaining interest in the property, does not arise out of any contract or transaction set forth in the complaint as the foundation tif the plaintiff’s claim; nor is it connected with the subject of "the action; "nor is the action on contract. {Code, § 150. And see Bogardus v. Parker, 7 How. Pr. R. 303.) Indeed, a defense or counter1 claim, in an action of ejectment, that the defendant had agreed to convey "to the plaintiff, would be absurd. ■ According to Cochran v. Webb, (4 Sandf. S. C. R. 653,) it was erroneous to deny’the plaintiff’s legal’title, and also set up an equitable defense looking to affirmative relief. One of the reasons "there given "is, that the issues are to be tried differently. This objection,' however, was not taken by the" demurrer, or on the argument. The demurrer must be sustained, with leave to the defendant to amend oh payment of costs.